How to Suspend a Florida Trustee
Florida trust beneficiaries always seem to want to REMOVE a Florida trustee. But, do you know how to suspend a Florida trustee? And, what’s the difference? Well, we have provided prior commentary about removing a Florida trustee. Now, we will discuss suspending a Florida trustee. We’ll also provide some insight from one of Florida’s top trust litigation attorneys, John Pankauski. Pankauski leads an elite group of trust and estate litigator lawyers and appellate attorneys. Heck, Pankauski literally wrote the book on family trustees.
Start at the Beginning: Understanding Florida Trust Law
Did you know Florida Trust Law gives great discretion to a judge? Yes. Florida Statutes §736.0201(2) permits Florida Courts to intervene in the administration of a trust. Fla. Statutes 736.0706 shows you how to remove a trustee.
Trust Courts Have Great Power
This authority granted to our judiciary is very broad. It is only limited by a Court’s sound discretion. In fact, a Court may “appoint or remove a trustee” or “determine any other matters involving trustees and beneficiaries.” Florida Statutes §736.0201(4)(b),(g). Want to read more?Here is a Florida trust appeal opinion that you can read for free. For a Miami-Dade appeals court case about removing a trustee, read the McCormick v. Cox case. The 3rd District Court of Appeal wrote a thorough opinion in 2013. “We often use the McCormick case” says trust litigator John Pankauski “when we are suing a bad trustee.” The McCormick case dealt with trustee removal, breaches of fiduciary duty and “unilateral” payment of big trustee fees.
But there’s more! What authority does a Florida probate judge have to suspend a trustee? Under Florida Statutes §736.1001 (2)(b), (e), (f), (g), (j), a court may “enjoin” a trustee, “appoint a special fiduciary to take possession of the trust property and administer the trust”, “suspend a trustee”, “remove a trustee”, “order any other appropriate relief.” Such authority does not even require a finding that a breach of trust has occurred.
When Should You Suspend a Florida Trustee
“Whether suspending a trustee makes sense or not is always so fact-specific“ starts Pankauski. “A good trial attorney will explain all the remedies which you may seek, including removal or suspension of a trustee.” Pankauski recommends having a sincere, hard look at your facts. And then evaluating risk and reward of your Florida trust trial. Some beneficiaries find it inconceivable that they could lose their trust case. “That’s never healthy” explains Pankauski. “After all, our judges are trained to, indeed, required to, evaluate all sides to a case.” But, Pankauski reminds us, suspending a trustee requires evidence. And a mini-trial or evidentiary hearing. “So, be prepared. Have your witnesses lined up and evidence ready” suggests Pankauski. If you are taking the big step to suspend a trustee, Pankauski also provides two other things to consider. First of all, watch out for so called trust lawyers who say they go to court all the time. In reality, they don’t try cases and want to settle everything. Second, remember that the losing party may have to pay the other side’s attorneys fees. Or, perhaps, your trust interest gets reduced.
Modifying a Trust
Finally, a court may, on its own, modify a trust. What does “modify” mean? Change its terms. This could include suspending a trustee by changing the trustee language in the trust document. To modify an irrevocable trust, consider reading Fla. Stat. §§736.04113, and also 736.04115. You can also read about a court’s inherent authority to do things on its own. A 2002 Florida trust appeal does not deal with modification, but is instructive or helpful. It dealt with trust reformation. It’s the Schroeder v. Gebhart case. 825 So.2d 442, 446 (Fla. 5th DCA, 2002). Trust beneficiaries can also read Wallace v. Comprehensive Personal Care Services, Inc., which deals with trustee removal.