Florida Trust Litigation Information
Hollander and Associates, LLC
One Biscayne Tower, Suite 1650
2 South Biscayne Boulevard
Miami, Florida 33131-1808
Telephone: (305) 373-9999
Toll Free: (800) 966-4041
Telefax: (305) 373-7777
E-mail: frankh99@aol.com
Web: www.attorneyatlaw.bz
Florida Trust Litigation. Florida Trust Litigation involves beneficiaries who have been affected by improper actions of an individual (often a trustee). Trust Disputes involve trust contests, trust construction, breach of a fiduciary duty, removal of a fiduciary, and trust accounting disputes.
Trust Contests
Under current Florida Law, a Florida Revocable Trust must comply with the statute of wills. This means it must be witnessed and notarized correctly to be valid. The most common disputes in Florida Trust Litigation involve:
Mistake in Execution. A Florida Trust is not valid unless created with the requirement for a valid Florida Trust. These include the :
- The Settlor having the capacity to create the trust;
- The Settlor indicating intent to create the trust;
- The trust must have a definite beneficiary unless charitable or for a pet; and
The trustee must have Duties to perform.
Undue Influence. A Florida trust may be invalid if the person making the Florida Trust did not create the trust or modify the trust freely or was coerced by a person who was in a position of trust and control.
Lack of Capacity. A Florida Trust may be invalid if when the Florida Trust was executed the Settlor or Grantor did not have the required mental ability to understand:
- The amount and nature of the property;
- Who would have normally received the property; and
- How the Florida Will would have disposed of the property
Trust Construction
Sometimes a Florida Trust cannot accomplish the goals of the creator. Other times there are mistakes in the language or ambiguities that make performance of the trustee's duties difficult or impossible. When these types of issues arise or there is a need to modify the Florida Trust, the trust can be modified by consent of when the Settlor or creator is alive, but once the Settlor dies we often have the look to the Florida courts to do a judicial modification of the trust.
Breach of a Fiduciary Duty
A person who accepts the role of a trustee or co-trustee in a Florida Trust has a duty to act for the benefit of the beneficiaries of the trust. If the Florida Trustee fails to properly administer a Florida Trust he can be liable to the other beneficiary for his mistakes. Sometimes beneficiaries seek to remove the trustee because of an act or the failure to act that causes a waist or mismanagement of the Florida Trust's assets. Another remedy that the beneficiaries of a Florida Trust can seek is called a surcharge action.
Removal of an Agent or Fiduciary
In Florida an Trustee ( the agent or fiduciary) can be removed by a court when the Trustee is not acting properly. The Settlor, a co-trustee, or a beneficiary may request the court to remove a Florida Trustee, or the court may remove a trustee on the court's own initiative.
Trust Accounting Disputes
In Florida beneficiaries of a trust have a right to an accounting. If they do not receive regularly accountings as defined by statute or the Florida Trust, then the beneficiary may seek the court to compel the trustee to account for the trusts assets. Other times accountings may be objectionable and beneficiaries may have to seek judicial intervention to obtain a proper accounting.
If you believe that there is something wrong with the way a Florida Trust has been handled or your assets have not been dealt with fairly, and you would like a free consultation, and legal assistance, call (305) 373-9999 for an appointment or call toll free 1(800) 966-4041for a free out-of-town telephone consultation.
