Serving as a trustee in Florida can be stressful, and in many instances pleasing everyone can be impossible. What due process does a trustee in Florida have when their removal is requested? This is a more complex problem then you may realize at first.
- The law requires that these issues be given the due process under Florida Rules of Civil Procedure. See Fla. Stat. 736.0201(1).
- These are the rules that all Civil Courts in Florida use in adversarial proceedings
- Probate judges however spend a lot of time presiding over uncontested wills and probate hearings which utilize the Florida Probate Code
- The Florida Probate Code has a reduced due process element in order to serve its purpose and be efficient
- The removal of a trustee should not be done under the Florida Probate Code but under the Florida Rules of Civil Procedure
In the semi-recent case of Kountze v. Kountze the trustee had upset the probate judge for multiple reasons. The judge made a mistake though in removing the trustee without any due process or hearings. This is called summary removal. The Appellate Court made it very clear that they sided with the trustee and that this type of unilateral removal would not be acceptable absent evidence to support it.
The Court stated bluntly:
On appeal, Edward Kountze argues that it was error for the trial court to make such a finding and remove him as Trustee without providing him notice and an opportunity to be heard. We agree. Edward was put on notice of a hearing on Charles’ motion to compel discovery. In that motion, Charles did seek a sanction against Edward for his failure to comply with discovery, but that sanction–the only sanction of which Edward was aware–was the imposition of an attorney’s fee award, not removal as Trustee. Additionally, in a prior contempt order entered in this case, the trial court had given Edward twenty days to comply with the discovery request then at issue and had stated that if he failed to do so “Defendant shall pay to Plaintiff $100.00 per day beginning the day after such items are due, and shall continue to pay Plaintiff $100.00 each day until Defendant has fully complied with this order.” There is nothing in the record to put Edward on notice that removal as Trustee was a possible sanction. As such, Edward had no reason to be prepared to defend against such a sanction.
The lessons here are two-fold. First procedurally you should always be aware that judges are not always impartial and your decorum and failure to listen could put you in hot water down the line, avoid that at all costs. Secondly though and perhaps more importantly if you have been removed as trustee you have rights and redress.
Want to learn more about your duties and rights as a trustee in Florida? Check out our FAQ video library at: http://www.pankauskilawfirm.com