Florida Probate, Trust & Guardianship Litigation

Florida Trust Litigation

The trustee of a trust owes the beneficiaries of that trust certain fiduciary duties of honesty, prudence, and loyalty. When those duties are violated by a trustee, a bequest may be put in jeopardy. 

Types of Trust Litigation

  • Challenge the validity of a trust.  A trust can be challenged on the grounds of undue influence, lack of proper execution formalities, lack of capacity, insane delusion, and fraud. 
  • Failure to make proper and timely distributions.  The trustee is required to follow the terms of the trust instrument by making distributions to the proper beneficiaries and in the proper amounts.  The trustee should also make timely distributions as well, instead of improperly retaining trust corpus.
  • Improper investments.  The trustee, as a fiduciary, is required to make prudent investments of the trust.  Under the Prudent Investor Act, trustees are normally required to diversify the trust, make appropriate and suitable investments, and not take unnecessary risk with the trust investments.
  • Self dealing.  A trustee should not normally engage in transactions between the trustee and the trust, unless certain procedures are followed. Trustees that enrich themselves at the expense of the trust can be subject to surcharge in Florida trust litigation.
  • Excessive trustee compensation.  The Florida Trust Code and Florida caselaw restrict trustee compensation to that of reasonable compensation.  Trustees that pay themselves excessive compensation can be subject to surcharge in trust litigation.
  • Attorney fee disputes.  The attorney fees that a trustee charges can always be challenged, whether the fees are charged in regular administration of a trust or in trust litigation.  
  • Interpreting ambiguous trust provisions.  Unfortunately, not all trusts are models of clarity.  In some instances, the terms of the trust will have to be interpreted, sometimes through litigation over the terms of the trust.
  • Improper gifts from trusts and excessive distributions from a trust.  There have been examples of trusts where the trustees will make gifts of the trust to third persons (or themselves) while the settlor of the trust is still alive.  During the lifetime of the settlor, the trustee typically owes a fiduciary duty to the settlor of the trust only.  At the death of the settlor, however, any beneficiary of the trust can take action to redress any breach of fiduciary duty that may have taken place prior to the death of the settlor.  Depending on the extent of the gifting from the trust, the trust litigation can be monumental.


The deadlines for trustees to take certain actions, and for beneficiaries to enforce their rights, can be found in the deadlines sectionChallenging information disclosed on an accounting has a more complex set of deadlines, depending on when the accounting was provided, whether the information on the accounting was disclosed elsewhere, and whether information is adequately disclosed.  

How to Pay for Litigation

Trustees are normally allowed to use trust funds for litigation, unless the trustee has been accused of breach of trust.  If breach of trust has been asserted, advance notice of the payment of fees is required, and litigants can object to the payment of fees.  A litigant attacking a trust or its administration will have to fund their own litigation out of pocket.  A few lawyers in the State will litigate some trust disputes on a contingency basis, or an alternative fee arrangement.  


Can the RICO act be used in trust litigation?

No.  The Racketeer Influenced and Corrupt Organizations Act (“RICO”) cannot be used in trust litigation.  

What are the Duties of a Trustee?

The trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Florida Trust Code.  The standard of conduct is further refined by the Florida Trust Code into distinct, yet overlapping “duties.”

  • Duty of Loyalty. Trustees must administer the trust in the interests of the beneficiaries, not the interests of the trustee. there are significant restrictions on the ability of the trustee to engage in transactions with the trust or to profit from administering the trust. A trustee who violates the Duty of Loyalty can be sued.
  • Duty Of Impartiality.  The trustee must administer the trust impartially and fairly as between multiple beneficiaries of the trust. A lawsuit can be brought against a trustee who does not administer the trust impartially.
  • Duty of Prudent Administration.  A trustee must exercise reasonable care, skill and caution in administering the trust – especially as it relates to the selection and monitoring of the investments of the trust.
  • Duty to Control Expenses of Administration.  the trustee is required to incur expenses in administering the trust that are reasonable in relation to the trust property, the purposes of the trust, and the skills of the trustee.
  • Duty to Control and Protect Trust Property.  The trustee shall take control of and to protect trust property.
  • Duty to Inform and Account.  the trustee is required to provide information to beneficiaries who request it. The Duty also requires the trustee to account to the beneficiaries on an annual basis – by providing a trust accounting that is compliant with the Florida Trust Code.  Only if a beneficiary declines trust accountings in writing is the trustee not required to annually account to such beneficiary.  

Complete Guide To Trusts

Formation in Florida: A Legal Roadmap

Establishing a trust in Florida can be a strategic move in estate planning, providing asset protection, privacy, and potentially even tax advantages. However, navigating the legal requirements and process for creating a trust is where the expertise of a Florida trust lawyer becomes indispensable.

Legal Requirements in Florida

In Florida, for a trust to be valid, it must meet certain legal requirements. First and foremost, the trust must have a definite beneficiary, unless it’s a charitable trust or a trust for noncharitable purposes without a definite beneficiary as permitted by statute. Additionally, the trustor must have the legal capacity to create a trust and must intend to establish a trust for lawful purposes. The trust must also be funded with identifiable property, and the terms of the trust should be specific enough to allow for its administration.

The Process of Creating a Trust

The process of trust formation in Florida begins with determining the appropriate type of trust for your needs, followed by drafting the trust document. This document outlines the trust terms, including information about the beneficiaries, trustee, and instructions for how the trust assets are to be managed and distributed. A Florida trust lawyer will guide you through drafting this document, ensuring that it is accurate, thorough, and legally sound.

  • Choosing a Trustee: One of the first steps in creating a trust is to select a trustee who will manage the trust assets according to the terms of the trust agreement.
  • Funding the Trust: After the trust document is executed, the next step is to fund the trust with the assets that you wish to place under the trust’s control.
  • Managing Trust Affairs: With the help of your lawyer, you can set up a management plan that outlines how the trust’s assets should be handled, detailing the roles and responsibilities of the trustee.

A Florida trust lawyer facilitates the process by ensuring that all legal formalities are met, providing counsel on the selection of a trustee, and helping to clarify the often complex language of trust documents. Legal support is crucial in avoiding common pitfalls and in customizing the trust to your personal circumstances and estate planning goals.

Revocable vs. Irrevocable: Tailoring to Your Needs

When planning your estate in Florida, understanding the nuances between revocable and irrevocable trusts is critical for ensuring your assets are managed and distributed according to your wishes. A skilled Florida trust lawyer can provide the necessary guidance to make informed decisions that are tailored to your unique family and financial situation.

Understanding the Differences

At the most basic level, the difference between revocable and irrevocable trusts lies in the flexibility to alter or terminate the trust:

  • Revocable Trusts: Also known as “living trusts,” these allow the trustor to maintain control over the assets and make changes or dissolve the trust at any point during their lifetime.  Even though revocable, Florida law may require compliance with the terms of the trust for amendment or revocation.  
  • Irrevocable Trusts: Once established, these trusts cannot be changed or revoked. They typically offer better protection from creditors and can provide tax benefits, but they also mean the trustor relinquishes control over the assets placed in the trust.

Why Choosing the Right Trust Matters

Each type of trust offers distinct advantages and considerations:

  • Revocable Trusts are often chosen for their flexibility, allowing for adjustments over time as your life circumstances and financial goals evolve. They can also provide privacy and expedited asset distribution after death, bypassing the often lengthy probate process.
  • Irrevocable Trusts, while less flexible, are a powerful tool for asset protection and tax planning. They can also be used in specialized circumstances, such as in Medicaid planning or for the benefit of a child with special needs.

A Florida trust lawyer can help you weigh these factors, and more, to determine which type of trust aligns with your estate planning objectives.

Expert Guidance

Finding the perfect balance between control, protection, and future planning is no small feat. With the assistance of an experienced Florida trust lawyer, you can:

  • Analyze the potential risks and benefits of each trust type in the context of Florida’s legal framework.
  • Customize a trust structure to fit your specific family dynamics and financial considerations.
  • Feel confident that your trust is constructed to address your long-term goals and provide for your loved ones.

An attorney’s expertise ensures your trust not only meets your current needs but also stands strong in the face of any future changes in laws or in your personal circumstances.

Living Trusts: Keeping It in the Family

Living trusts are essential tools for estate planning that can ensure your assets are managed and distributed according to your wishes without the need for probate. A Florida trust lawyer can provide expert guidance on setting up a living trust effectively under Florida law, which in turn can offer peace of mind for you and your loved ones.

Benefits of Living Trusts

One of the primary advantages of a living trust is the ability to avoid the probate process. Probate can be time-consuming, costly, and public. By using a living trust, your family can manage and distribute your assets more quickly, privately, and with potentially less expense. Additionally, living trusts provide the flexibility to specify when and how your beneficiaries receive their inheritance, which can be particularly beneficial for minor children or in complex family situations.

Establishing a living trust in Florida starts with consulting with a knowledgeable Florida trust lawyer. They will guide you through the considerations for your particular circumstances, including choosing between a single trust or a joint trust if you are married, deciding on a successor trustee, and outlining the terms of asset distribution. Your trust lawyer will ensure that the trust document is drafted in accordance with Florida law and that it reflects your specific needs and goals.

  • Inventory of Assets: Collate and review all assets that you want to include in the trust.
  • Selection of Trustee: Decide on who will manage the trust; it can be you during your lifetime and a successor after your passing.
  • Defining Beneficiaries: Clearly outline who will benefit from the trust after you’re gone.
  • Execution of Trust Documents: Properly sign and notarize the trust with your attorney’s guidance.
  • Funding the Trust: Transfer ownership of your assets into the name of the trust. Your attorney can assist with this process.

By taking these steps with the help of an adept Florida trust lawyer, you can establish a living trust that safeguards your family’s future and respects your legacy. Whether you are trying to protect minor children, manage property, or simply ensure a smoother transition of your assets, a living trust can be a strategic part of your estate planning arsenal.

Trust Administration

As a trustee of a trust under Florida law, your role comes with a host of responsibilities and a duty of fiduciary care. The administration of a trust is a nuanced process, requiring an understanding of both legal obligations and the specific wishes of the trustor. Navigating these waters can be complex, and the guidance of a seasoned Florida trust lawyer is invaluable in ensuring that you meet your duties with diligence and integrity.

Roles and Responsibilities of a Trustee During Trust Administration

As a trustee, your primary role is to manage the trust assets in accordance with the trust document and for the benefit of the beneficiaries. This includes prudent investment of trust assets, making distributions as dictated by the trust terms, maintaining clear and accurate records, and avoiding any conflicts of interest. It is imperative to act solely in the beneficiaries’ interests and in line with the legal standards set forth by Florida law.

Importance of Legal Assistance in Trust Administration

Legal assistance is not merely a recommendation; in many cases, it is a necessity for trustees who aim to ensure fiduciary compliance. A Florida trust lawyer can provide essential guidance on various aspects such as:

  • Interpreting the terms of the trust accurately.
  • Navigating the complexities of tax laws and their implications on the trust.
  • Understanding and fulfilling your obligations to both current and future beneficiaries.
  • Ensuring that all actions taken are in the confines of the law and in the best interest of the trust.

Failure to comply with your fiduciary duties can lead to legal consequences and personal liabilities. A Florida trust lawyer plays a pivotal role in advising and guiding you through the process, helping you to avoid common pitfalls and to administer the trust competently and in full legal compliance.

Special Needs Trusts: Caring for Vulnerable Beneficiaries

When it comes to providing for the well-being of beneficiaries with disabilities, special needs trusts play an indispensable role. These specialized legal instruments are designed to ensure that individuals with disabilities receive the financial support they need without compromising their eligibility for essential government assistance programs.

Why Special Needs Trusts Are Vital for Beneficiaries with Disabilities

The establishment of a special needs trust can be a critical step in safeguarding the quality of life for a beneficiary with disabilities. By setting up a trust, a person with special needs can benefit from financial resources that can pay for various expenses beyond what government programs cover, such as personal care attendants, home modifications, or specialized equipment, all without risking the loss of benefits like Medicaid or Supplemental Security Income (SSI).

How Florida Trust Lawyers Create Trusts with Government Assistance Impacts in Mind

Florida trust lawyers are well-versed in constructing special needs trusts that align with state and federal regulations. An expert Florida trust lawyer can craft a trust agreement that takes into account the delicate interplay between trust assets and government aid. They work meticulously to ensure that the trust complies with all legal requirements, thus preserving the beneficiary’s access to government benefits while providing them with the additional resources they need to live a fulfilling life.

Professional guidance from a knowledgeable Florida trust lawyer can make all the difference in setting up a special needs trust. They provide peace of mind to families, knowing that their vulnerable loved ones will be cared for now and in the future.


Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

Free Consultation

(561) 842-4868


AV Rated