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Removal of a Trustee in Florida

| Sep 28, 2020 | Estate Planning, Probate Litigation, Trustee |

In Florida, a Revocable or Living Trust is a commonly used estate planning tool. This type of Trust allows assets held within the Trust to pass without probate. Such a Trust also allows assets to be held in the Trust and distributed to beneficiaries over time. In simple terms, a Trust allows a person to pass along their estate easily and with less expense, delay, and aggravation.

When a Trust is established, it must designate several things. First it must name one or more beneficiaries—this is who will receive the Trust assets and when they will receive those assets. Second, the Trust must name a Trustee. The role of the Trustee is to oversee the Trust and distribute the Trust assets as provided in the terms of the Trust. In essence, the Trustee is the one “in charge” of the Trust. When a person picks a Trustee, they usually do so believing that that person will carry out their duties in good faith.

However, a frequent question we encounter in our estate practice is whether a Trustee, once appointed, can be removed. The simple answer is “yes.” In fact, some Trusts specifically provide that the Trustee can be removed under certain circumstances. For example, some Trusts provide that the Trustee can be removed by vote of the beneficiaries.

However, even when the Trust does not include such a provision, the Trustee can be removed if certain criteria are met. Section 736.0706, Fla. Stat. provides the following for removal of a Trustee:

(1) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on the court’s own initiative.

(2) The court may remove a trustee if:

(a) The trustee has committed a serious breach of trust;

(b) The lack of cooperation among cotrustees substantially impairs the administration of the trust;

(c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or

(d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

In order to remove a Trustee, a settlor, a Co-Trustee, or a beneficiary must file a court action (a lawsuit) petitioning that the Trustee be removed. In that action, the court will hear evidence and from that will decide if any of the applicable criteria of Section 736.0706 are met. For example, has the Trustee committed a serious breach of trust? Is there a serious lack of cooperation among the Co-Trustees which is impairing administration? Is the Trustee unfit? Is the Trustee unwilling to administer the Trust?

Cases seeking to remove a Trustee are challenging and can take significant time and expense. A person wishing to pursue such a case should hire an attorney with experience not only in estate and Trust administration but also in trying cases.

 

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