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What is Florida Trustee Surcharge?

What We Do • Apr 10, 2021

Florida trust beneficiaries have rights ! And if your Florida trustee is bad, or not giving you information. You can ask a Probate Court to surcharge. What is Florida Trustee surcharge and why is it so important to experienced trust litigators?

Florida Trustee Surcharge is an issue that beneficiary rights lawyers deal with.

Florida Trust Code

The Florida Trust Code is a set of laws or statutes. They tell beneficiaries about their rights and trustees about their duties. Duties? Yes, under the trust document and Florida Trust Law. These laws will tell you a lot about judicial proceedings and rights and obligations. The Florida Trust Code is probably the single most important document to read besides the trust document itself. And, perhaps most important to beneficiaries. These laws tell you what you get if a trustee commits a BREACH OF TRUST. A breach of trust is a breach of fiduciary duty. What remedies does a beneficiary get? There’s a whole list RIGHT HERE. That’s Florida Statute 736.1001. What about damages? If you want to know about trustee damages, CLICK HERE. That’s Florida Statue 736.1002. But what is this trustee surcharge?

Trustee Surcharge Explained

Think of trustee surcharge as a personal fine against the trustee. She can’t use trust funds to pay the fine. She has to pay it personally. Individual trustee liability. That’s why you have to sue a trustee in their fiduciary capacity and their individual capacity. A surcharge action can be filed by a trust beneficiary. File a trust complaint under Florida Trust Code Statute 736.0201. You have to plead, or specifically ask for, surcharge in your trust complaint. How much is a trustee surcharge? It depends on the wrong committed by the trustee. A surcharge may be the value of damages caused by the trustee to the trust. Or out of pocket losses incurred by the trust beneficiaries. Market adjusted, or lost profits, damages for not investing prudently. Or, surcharge could include a trustee returning her compensation, which she took, back to the trust. For a free LEGAL COMMENTARY on trustee fees, CLICK HERE. Sometimes, a trustee may be ordered to give back to the trust what she paid to her attorneys. It really depends. For a leading case on surcharge, read the Kozinski v. Stabenow case. It’s a November 5, 2014 appellate opinion from the 4th District Court of Appeal. You can read it for free by going to the 4th DCA website.