TRUSTEE REMOVED FROM FLORIDA TRUST IN PALM BEACH COUNTY, FLORIDA TRUST LAWSUIT
The Pankauski Law Firm PLLC successfully removed a Florida trustee from continuing to serve as trustee of a Florida trust. The West Palm Beach law firm, whose practice is limited to estate and trust matters, represented two Florida trustees seeking the removal of a third, co-trustee. The two co-trustees were successful, prevailing at a specially set, evidentiary hearing in the probate court which hears Florida trust matters in Palm Beach County, Florida. The hearing occurred in the probate court in the downtown West Palm Beach, Florida courthouse.
The two Florida co-trustees, one an individual, and one a corporate entity, originally brought a trust lawsuit asking the trust court, or the probate court of Palm Beach County, to interpret a Florida trust document. The Florida trust document named three co-trustees. However, one other co-trustee took the position that he was the sole trustee, and that no co-trustees served with him. He wanted to run, or administer, the Florida trust alone, by himself, with no co-trustees. The two co-trustees believed that the third co-trustee’s position was wrong. After attempted negotiations and settlement failed, the two co-trustees sought a ruling from a probate court judge in Palm Beach County. Because of the disagreement of what the Florida trust document said, the two co-trustees filed a declaratory judgment action with the probate court for Palm Beach County , Florida.
A declaratory judgment action is a Florida legal proceeding where co-trustees, or beneficiaries, may ask a probate court, which decides trust cases or Florida trust lawsuits, to determine the rights of parties related to a Florida trust, to make declarations, or to interpret a trust document. The law for Florida trusts, and trustees and beneficiaries, is found primarily in the statutes of Florida, chapter 736, which is referred to as the “Florida trust code.”
The Florida trust code has a specific statute, Florida Statutes §736.0201, which permits Florida courts to “intervene in the administration of a trust.” This authority, this judicial power found in the Florida trust code, gives to probate court judges great authority and discretion to be involved in the administration of a Florida trust, and to make rulings regarding trusts– and Florida trust beneficiaries. The Florida trust code specifically permits a probate court, or a Florida court which hears trust matters, to interpret trust documents or declare rights. In other words, if trust beneficiaries or Florida trustees, cannot agree on what a trust document says, a probate court judge will tell everyone what the trust says, or means, and make a ruling regarding the trust. Florida law, under chapter 86 of the Florida statutes, also permits declaratory actions to be filed, and allows courts to make declarations of people’s rights. A declaratory judgment may be granted to parties by a Florida court when there is no “adequate remedy at law” and when the parties have a bona fide, real controversy , or, as the Fourth District Court of Appeals in West Palm Beach, Florida, has written: “the seeds of litigation are ripening.”
Florida Statues §736.0706, also known as F.S. §736.0706 or Fla. Stat. §736.0706, is that part of the Florida Trust Code which deals specifically with the removal of a Florida trustee. Do you want to remove a Florida trustee? Do you want to have a Florida trustee removed from office? If so, you must be familiar with this part of the Florida trust code which removes trustees.
Where can I get a copy of the Florida statutes or laws? They are available, by year, online: http://www.leg.state.fl.us/STATUTES/.
Where can I get a copy of the Florida Trust Code? It’s free and online: http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/0736ContentsIndex.html&StatuteYear=2013&Title=%2D%3E2013%2D%3EChapter%20736
Here are some basics to know if you want to remove a Florida trustee from serving. First of all, you should recognize that this is serious stuff. Courts will not take this lightly. When you file an action to remove a trustee from serving, you are asking a probate court to intervene in the administration of the trust and to make a judgment call. Sometimes, some probate lawyers in Florida may seek the removal of a sitting trustee too often. Florida trustees should not be removed just because there is a disagreement with co-trustees or beneficiaries. If co-trustees have a disagreement, there is a mechanism in place within the Florida trust code that does not require seeking the removal of a co-trustee. A co-trustee in Florida who disagrees with what their other co-trustees are doing, should register his or her disagreement, or perhaps objection, in writing with the other co-trustees. If , however, one co-trustee believes that another co-trustee is doing something improper, then the co-trustee needs to go to a probate court, and ask the Florida probate court for assistance and guidance. So, when is removal of a Florida trustee appropriate?
A Florida trustee may be removed if the co-trustee is “unfit.”
A Florida trustee may also be removed if they have committed a serious breach of trust, which is a violation of Florida law which requires a trustee to act in the best interests of the trust beneficiaries and the trust, in a fiduciary capacity. If a co-trustee breaches their fiduciary duty to the trust or the beneficiaries, this constitutes a breach of trust. The Florida trust code provides specific remedies for beneficiaries, or co-trustees, when one trustee commits a breach of trust.
Want to read about the remedies which a Florida trust beneficiary has regarding a Florida trust when there is a breach of trust by a Florida trustee? The remedies are free, online:
The remedies for a breach of trust by a Florida trustee are found in the Florida Trust Code, Florida Statutes 736.1001.
If a breach of trust has occurred, a trust court, a probate court in Florida, may suspend the powers of a Florida trustee who has committed a breach of trust, address or cure the breach of trust, or may remove the trustee from continuing to serve as trustee in Florida. A Florida court may also remove a Florida trustee from serving as trustee if the trustee impedes the administration of the trust, or if the trustee is uncooperative. A Florida court will not remove a trustee from serving if there is merely a disagreement among the co-trustees, or even among the trustee and the beneficiaries.
But when a co-trustee does not comply with the intent of the creator of the trust, when a co-trustee ignores the plain meaning, or the plain language of the Florida trust document, when a co-trustee is contentious, and argumentative, it is appropriate for a Florida court to remove that Florida trustee. If a trustee commits a serious breach of trust, that may warrant his or her removal as trustee. An example of a serious breach of trust would include not collecting or recovering assets which should go into the trust, or, transferring money or assets away from the trust, to someplace else. Another example of a breach of trust in Florida would include a trustee’s failure to account, or to not reveal to the beneficiaries or co-trustees, where all the trust assets are.
When a court considers removing a trustee, it will balance the intent of the trust creator, called the “settlor”, who appointed the trustee, or who named the trustee to serve in a trust document, with the rights of the beneficiaries and the best interests of the trust. A trustee removal proceeding in Florida may be referred to as a “mini trial”: a full-blown, evidentiary hearing. Evidentiary hearings in trust lawsuits require, well, evidence. To win at a trustee removal hearing, or any evidentiary hearing for that matter, it takes a lot more than a Florida trust lawyer standing up in court and speaking. “Argument of counsel” is not evidence in Florida.
The Florida probate court will seek evidence, which may include documents, testimony of third parties who dealt with the trust or the Florida trustee, as well as the testimony and the very own words of the trustee who is being removed. The probate court will make specific findings of fact and rulings of law in determining whether to remove, or not remove, a Florida trustee. A trustee who is removed may be subject to a monetary fine, which may represent damages, or fees or costs which have been incurred by or caused by the trustee who’s been removed. Such a monetary fine is often referred to in Florida trust Law as “surcharge.” In addition, a trustee who is removed from serving as trustee in Florida may also have to pay the trust back attorneys fees or costs.