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In Florida, does a Court have authority to modify a Trust?

| Dec 24, 2014 | Probate |

Like many questions under the estate and probate law, the answer depends on a number of factors. 

Typically, if a Trust is still revocable, meaning that the Grantor who established the Trust is still living and competent, then a Court is not normally authorized to modify the Trust. This makes sense due to the fact that the person establishing the Trust can modify it himself if he/she feels it necessary.

One the other hand, if the Trust has become irrevocable, then there are circumstances where a Court can modify the Trust. So, for example, if the Grantor dies, thereby making the Trust irrevocable, then a Court can modify the Trust in the right situations.

Section 736.04113, Florida Statutes, provides that a Trustee or qualified beneficiary may petition the Court for modification if:

(a) The purposes of the Trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;

(b) Because of circumstances not anticipated by the Grantor, compliance with the terms of the Trust would defeat or substantially impair the accomplishment of a material purpose of the Trust; or

(c) A material purpose of the Trust no longer exists.

If you are a Trustee or a beneficiary of a Trust and wish to assess your options in seeking a modification, you should consult with an experienced estate lawyer.

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