New Florida Trust Law Changes Trust Contest Statute in Florida Trust Code

Uncategorized • Aug 19, 2014

A recent change to the Florida Trust Code is one which every Florida trust lawyer, trustee and beneficiary should know about.

Florida Trust Code

The Florida Trust Code is a set of statutes or laws which governs the administration of Florida Trusts
Want to know if your step-mother, who is administering your Dad’s trust from her house in Palm Beach Gardens, Florida is breaching her duty?
Do you wonder why the Boca Raton bank account is not placed into your mom’s Florida revocable trust?
Concerned that a trustee may be breaching her fiduciary duties?
Are you a trustee who is being bothered by an angry trust beneficiary?
The Florida Trust Code, along with the written opinions of Florida Appeals Courts, can help address those questions.

Around this time each year, the Florida Legislature, having completed its session, presents the Governor with bills
Many times, there are bills or proposals to change the laws of the Florida Probate Code, the Florida Trust Code and related Florida guardianship statutes
A recent change involves Florida Trust Code Section 736.0207
This trust law deals with attacks on the validity of a trust agreement, often referred to by Florida trust lawyers as a “trust contest” or “challenge to a Florida trust. ”

New language was added to the Trust Contest law in Florida regarding trusts
The new statute makes it clear that that section of the trust code dealing with trust challenges or trust contests deals with …
An action to contest the validity OR REVOCATION of all or part of a trust….

Question: Why does this matter?

First, the person attacking the trust has the burden of establishing the grounds to attack the trust, or to invalidate it. In other words, if you want to contest the trust which was your late uncle’s Florida revocable trust when he lived in Boynton Beach, FL, the procedural and evidenciary burdens begin with you….. called the “contestant”
Second, this makes it clear that we are talking not just about attacking the validity of a trust, but also a trust document which revokes the trust (or part of the Florida trust)
Florida revocable trusts have become a very common estate planning tool for people in Florida, just like a will or Florida power of attorney
You can change your Florida living trust: you can revoke it, amend it, or alter it….as long as you are competent and free from undue influence or fraud
So, many times, you will see amendments or trust restatements or revocations ….. and if you want to attack the revocation document of a Trust, this law applies to you !
So, if your rich Aunt Sophie of Delray Beach, Florida had a $10 Million trust which named you as the sole beneficiary, and then she revokes the trust section which leaves you the $10 Million and adds a new section which gives the money to your sister or brother, the burden of a trust contest on that revocation document begins with you.
This new trust law language is not retroactive but is prospective