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Breach of Fiduciary Duties

736.1001 Remedies for breach of trust.

  1. A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.
  2. To remedy a breach of trust that has occurred or may occur, the court may:
    1. Compel the trustee to perform the trustee’s duties;
    2. Enjoin the trustee from committing a breach of trust;
    3. Compel the trustee to redress a breach of trust by paying money or restoring property or by other means;
    4. Order a trustee to account;
    5. Appoint a special fiduciary to take possession of the trust property and administer the trust;
    6. Suspend the trustee;
    7. Remove the trustee as provided in s. 736.0706;
    8. Reduce or deny compensation to the trustee;
    9. Subject to s. 736.1016, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or
    10. Order any other appropriate relief.
  3. As an illustration of the remedies available to the court and without limiting the court’s discretion as provided in subsection (2), if a breach of trust results in the favoring of any beneficiary to the detriment of any other beneficiary or consists of an abuse of the trustee’s discretion:
    1. To the extent the breach of trust has resulted in no distribution to a beneficiary or a distribution that is too small, the court may require the trustee to pay from the trust to the beneficiary an amount the court determines will restore the beneficiary, in whole or in part, to his or her appropriate position.
    2. To the extent the breach of trust has resulted in a distribution to a beneficiary that is too large, the court may restore the beneficiaries, the trust, or both, in whole or in part, to their appropriate positions by requiring the trustee to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or by requiring that beneficiary to return some or all of the distribution to the trust.
  4. What can you get in the way of damages when there is a breach of trust by a Florida trustee? The Florida Trust Code also deals specifically with trust damages, or damages in a trust lawsuit. Florida Statutes, 736.1002 deals with damages for a breach of trust.

It is also summarized below for your convenience:

736.1002 Damages for breach of trust.

A trustee who commits a breach of trust is liable for the greater of:

The amount required to restore the value of the trust property and trust distributions to what they would have been if the breach had not occurred, including lost income, capital gain, or appreciation that would have resulted from proper administration; or The profit the trustee made by reason of the breach.

Co-trustees be cautious! “If more than one person, including a trustee or trustees, is liable to the beneficiaries for a breach of trust” there is pro rata liability, or pro rata contribution from the other person or persons. But there is no contribution from co trustees for the very bad trustee: a trustee who commits a breach of trust in “bad faith.”

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