Revocable Living Trust Lawsuits
Today, it seems that every Florida estate planning attorney offers the services of creating trusts for clients. Indeed, the revocable trust, also called a living trust, or a revocable living trust, seems to have almost taken the place of a Florida will. Why? Well, most wills which are written by attorneys now are so called “pour over” wills, where the assets or property are “poured over,” or given to, the trustee of their revocable trust. At death or incapacity, the “revocable” trust becomes irrevocable. Yes, the living trust is now the “main” dispositive vehicle to give away inheritances, and otherwise dispose of your wealth and property to chosen beneficiaries at your passing. It functions just like a will, but it is generally not filed in the court system like a will is. But there is often a Notice of Trust which is filed in the court system and a similar notice which the trustee is required to send to all trust beneficiaries. The trust document can be private, unless there is trust litigation going on.
Since revocable trust have become so popular, as you might imagine, probate litigation attorneys in Florida must be versed in matters regarding trusts. This requires knowing how to assist and defend trustees from potential and existing liability. Do you, as a trustee, know how to comply with Florida law and your duty to your beneficiaries? Are you doing what Florida trust law requires you to do, or, rather, are you handling the trust like you want to?
Florida probate litigators must also be aware of all the rights given to trust beneficiaries under the Florida Trust Code and appellate law. You should be aware how a trustee should act and refrain from acting. A trustee is a fiduciary and can’t treat the trust like his or her own pocketbook or wallet. A family trust is not the personal ATM of a trustee, who must comply with a number of duties and obligations under Florida law.
One of the cutting edge Florida trust topics is whether you can sue, or get an accounting from, a trustee of your parent’s revocable trust while your parent is still alive, but incapacitated or incompetent. There seems to be disagreement among Florida trust attorneys about this right to an accounting during a revocable trust grantor’s life. Generally, you, as a son or daughter and remainder beneficiary of the trust, typically don’t inherit under the trust until your parent passes away. Those are typical revocable trust terms. But if your parent is incapacitated or incompetent, doesn’t that then make the revocable trust irrevocable by its terms and Florida trust law? If so, then shouldn’t you be able to get an accounting and relevant information from your parent’s trustee?
For more on the subject of family trusts, or revocable trusts, consider reading Pankauski’s Trustee’s Guide — 10 Steps to Family Trustee Excellence, which is featured on other parts of this Florida trust law firm website. Pankauski’s Trustee’s Guide provides great insight into how a family trustee should act, with some examples of bad trustees, and how NOT to act. It also explains what duties are owed to trust beneficiaries by their trustee. Or you could simply read the Florida Trust Code for free.