ShuffieldLowman partner, Alex Douglas, also contributed to this post.
Once a trustee accepts trusteeship of a trust, there are certain fiduciary duties to the trust beneficiaries, according to the Florida Trust Code. Some of these fiduciary duties cannot be modified, regardless of how the trust is written.
What does it mean to accept a trusteeship? A written document expressly acknowledging his acceptance is the most obvious example. However, trustees should understand that acceptance of trusteeship can occur in other ways too. This means a trustee is “on the hook” to comply with his fiduciary duties if he accepts trusteeship by substantially complying with a method of acceptance provided in the terms of the trust, or if the trust does not provide a method for acceptance of trusteeship, if he accepts delivery of trust property, exercises powers or performs duties as a trustee, or otherwise indicates acceptance of trusteeship.
Once a trustee has begun acting as a trustee, he has a mandatory duty to administer the trust in good faith and in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries. The Florida legislature made a recent change to the definition of “interests of beneficiaries” to make it clear that the settlor’s wishes, as expressed in the trust, should be considered. This means that beneficiaries generally cannot circumvent a settlor’s wishes by claiming that their interest is best served some other way. For example, if a settlor expressed in the trust that he only wants a beneficiary to receive lump sum distributions at certain lifetime milestones (e.g., graduating from college, getting married, etc.), the beneficiary cannot alternatively demand trust distributions on a monthly basis.
Similarly, a trustee’s mandatory duty of loyalty requires him to administer the trust solely in the “interests of the beneficiaries,” and to avoid conflicts and self-dealing. Actions by a trustee involving a conflict of interest that are not specifically authorized by the trust or the Florida Trust Code, or otherwise approved by the Court, are voidable and may subject a trustee to liability to the trust beneficiaries.
Another fiduciary duty owed by a trustee is the duty of impartiality. This does not necessarily mean that all beneficiaries should be treated equally. Rather, the trustee should consider the facts and circumstances of each request or action, as well as the terms in the trust, when deciding the best way to proceed. A trustee should not favor one beneficiary over another in conflicts that are merely between beneficiaries and do not relate to the validity of the trust. In the case of Barnett v. Barnett, 340 So. 2d 548, 550 (Fla. 1st DCA 1976), a trustee’s litigation fees were denied because the trustee took a partisan stance and argued the side of one or more of the claimants.
In the event someone contests the validity of the trust, the trustee has an obligation to defend the trusts’ validity surprisingly, while there is no statute. A trustee also has a duty to keep clear, distinct, and accurate records. As part of this duty, a trustee should also make sure that he is keeping trust property separate from his own property. If inadequate recordkeeping results in any obscurities or doubts, all presumptions are against the trustee. It is important for trustees to document each decision made and why the decision was made.
should also consider making and keeping records simultaneously with the actions
taken to avoid any doubt concerning accuracy. If a trustee is seeking
compensation, he or she must keep accurate time records. If the trust does not
specify how the trustee should be compensated, the trustee is entitled to
compensation that is reasonable under the circumstances. The burden will be on
the trustee to show the reasonableness of his or her fees.
there is a lack of documentation, there is a presumption of impropriety against
the fiduciary. Even saying that a hurricane blew away your records is not an
excuse! Really! In Traub v. Traub, the Court held that, because the trustee failed to keep
accurate records, even though the records were allegedly destroyed, the burden
shifted to the trustee to show that the trust money expended was proper.
Next, a trustee has a duty to keep beneficiaries informed regarding the administration of the trust and to provide accountings. Initially, a trustee must notify qualified beneficiaries of the existence of the trust, identify himself as the trustee, and explain the beneficiaries’ right to receive trust accountings. Other mandatory duties of the trustee are to provide a complete copy of the trust and to account to qualified beneficiaries by providing a trust accounting at least once annually. Additionally, if a qualified beneficiary of an irrevocable trust requests relevant information about the assets, liabilities, or particulars relating to the trust administration, a trustee has a mandatory fiduciary obligation to provide the requested information. However, as long as a trust is revocable, the trustee’s duty is only owed to the settlor (the person who made the trust) of the trust.
Another important fiduciary duty is the duty of prudent administration. There is no “winging it” when it comes to trust administration. A trustee must administer the trust as a prudent person would, by considering the purposes, terms, distributions, requirements, and other circumstances of the trust. Trustees must exercise “reasonable care, skill, and caution.” If a trustee is unsure whether certain action (or inaction) is the best choice, he should investigate and seek all information necessary to make an informed decision. This is good advice even if all beneficiaries consent to the action or inaction– trustees still need to make sure their discretionary actions make sense and are in the best interest of the beneficiaries as defined by the trust.
During the course of prudent administration of the trust, the trustee should only incur reasonable expenses. A trustee should consider what is reasonable for him to do on his own, versus what is better for a professional to do. If a trustee is hiring an outside vendor to perform a task (e.g., accountants, attorneys, etc.), he should negotiate a reasonable fee for the work needed. If a trustee has his own set of special skills, he will be expected to use that set of skills. A corporate fiduciary will be held to a higher standard than an individual. Fair compensation should be based upon the trustee’s particular skills.
When it comes to hiring third parties, a trustee must choose wisely. He should investigate the background of all professionals and agents hired, including attorneys, accountants, investment advisors or other agents. Generally, a trustee may act on the recommendations of such persons without independent investigations.
Finally, when it comes to claims of creditors, a trustee has a mandatory obligation to file a notice of trust upon the settlor’s death. A trustee must also pay expenses and obligations of the settlor’s estate, in the event the assets of the settlor’s estate are not sufficient to satisfy valid creditors’ claims.
Navigating this process can get complicated, so should you have any questions regarding the duties of a trustee, feel free to contact one of our highly-qualified and experienced trust attorneys.
In the event that a problem develops in the trust administration of an irrevocable trust (a trust that cannot be amended by the person who created the trust), or if there is an ambiguity in the trust document itself, or there are allegations by the beneficiaries that the trustee is not serving the interest of the beneficiaries, the first safe harbor to consider is a non-judicial settlement agreement. This is an agreement that is signed by the trustee and the beneficiaries that have a present income or beneficial interest in the trust, and from the beneficiaries that get the rest of the trust (i.e. the “residual” or “remainder” beneficiaries) when the persons who have the present income or beneficial interest die (these persons are also called the “qualified beneficiaries” under the trust code). You may not use a non-judicial settlement agreement to produce a result not authorized by other provisions of Florida’s Trust Code, or that could not be properly approved by the court. These types of agreements may cover:
The interpretation or construction of the terms of the trust;
The approval of a trustee’s report or accounting;
The direction to a trustee to perform, or refrain from performing, a particular act; or
The liability of a trustee for an action relating to the trust.
safe harbor is to obtain the consent and release from all of the qualified
beneficiaries. When obtaining a consent and release from the qualified
beneficiaries, the trustee should give full disclosure of the relevant
facts. Alternatively, a trustee may ask the court to provide the trustee
direction which is also called “declaratory relief” or “declaratory action”.
Any interested person can invoke the court’s jurisdiction to obtain declaratory
relief, and the proceeding can relate to construction, validity,
administration, or distributions of trust. A declaratory action can also
be utilized to have the court review a trustee’s fees, review and settle
interim trust accountings or final trust accountings, determine any right or
duty of the trustee, seek instruction by the trustee, or determine any other
matters involving trustees or beneficiaries.
For instance, let’s say a family relative dies and leaves a trust for you and
your siblings so you can pursue a “college or higher education degree” and the
bank is the trustee. Let’s also assume that your child wants to go to a
technical school to become a mechanic and wants the trust to pay for this
education. The trustee may raise a concern that the technical school will not
result in a “college degree” and therefore could file an action with the court
to ask the court to interpret the trust or permit the trustee to use trust
funds to pay for the technical training. The trustee alternatively could obtain
the written consent of all of the trust’s qualified beneficiaries (assuming
they are of age or have their parent’s consent) to use the trust funds to pay
for the technical training.
trustee who is considering exercising a discretionary power may seek judicial
approval before acting if there is concern that a beneficiary may object. In
such circumstances, the trustee should file a petition that describes the
proposed exercise or non-exercise of the discretionary power and sets forth
sufficient information to inform the qualified beneficiaries of the reasons for
the proposal, the facts upon which the trustee relies, and explains how other
beneficiaries will be affected. The burden is then on the objecting beneficiary
to show why the proposed exercise or non-exercise of the power by the trustee
is an abuse of the trustee’s discretion.
example, if a trustee is allowed to distribute trust funds in any amount that
the trustee deems just and proper for the benefit of three beneficiaries, and
one beneficiary has a greater financial need because of a disability than the
other two, the trustee before making the distribution can seek judicial
approval to favor the beneficiary that has more financial needs over the
other two beneficiaries. Otherwise, without court approval or consent of the
beneficiary, the trustee could be exposed to allegations that the trustee
inappropriately favored one beneficiary over another and otherwise that the
trustee breached his or her duty of good faith.
The facts and circumstances governing trust administrations differ on a case-by-case basis. ShuffieldLowman has an experienced team of trust attorneys that can guide trustees through the trust administration process to ensure they are complying with their mandatory fiduciary duties. Our attorneys can also assist trust beneficiaries with understanding their rights and recognizing breaches of fiduciary duty by a trustee who has veered off course.
Under Florida law and as a matter of public policy, settlements are highly favored and will be enforced whenever possible. Settlement agreements are governed by the rules of contracts, and the existence of an enforceable contract is contingent upon the Parties’ agreement to the essential terms of the agreement. What happens when you think you have a settlement agreement, but the other party refuses to sign a formal written settlement agreement?
Is a formal written agreement required to enforce a settlement in Florida?
Creating an enforceable settlement requires agreement to the essential terms of an agreement. What constitutes a material or essential term varies from cases to case. Nevertheless, once the parties reach an agreement on the essential terms, a formal written agreement is not required in order to enforce a settlement. Numerous courts in Florida, both state and federal, have enforced agreements reached through a series of emails between attorneys.
For example, in Warrior Creek Development, Inc. v. Cummings, 56 So. 3d 915 (Fla. 2d DCA 2011) the attorneys involved negotiated a settlement over e-mail. Their emails set forth the “essential and material terms” of the agreement between the parties. The attorneys subsequently drafted a written settlement agreement, which one party refused to sign, stating “the deal is off”. The Second District Court of Appeals affirmed the trial court’s order enforcing the settlement, finding that the “parties had agreed upon all of the essential and material terms for settlement and that those terms were reflected in the November e-mail. Similarly, in Miles v. Northwestern Mut. Life Ins. Co., 677 F. Supp. 2d 1312, 1315-1317 (M.D. Fla. 2009) the Court held that a written settlement agreement is a mere formality where the parties act with the intent to follow the settlement and the written agreement is essentially what was already agreed upon.
Negotiating a settlement over email – the considerations
These cases illustrate the risks inherent in negotiating a settlement over email. A party who wants to avoid being bound in the absence of a written settlement agreement should consider making any offer conditional upon the execution of a mutually agreeable settlement agreement and release. Conversely, setting out the essential terms of an agreement in a written communication can result in a settlement that is enforceable against a party who has gotten cold feet.
If you are a beneficiary of a trust or an estate and you have a trustee not doing a good job, you may be able to remove him or her under Florida law. ShuffieldLowman can assist with fiduciary issues such as self-dealing, favoring one beneficiary over another, failure to give an accounting at least once a year or failure to keep you reasonably informed. If the trustee is not fulfilling their fiduciary duties or has committed a serious breach you are entitled to seek their removal under Florida Law. You may be able to recover your attorneys’ fees, as well. Watch as fiduciary litigation attorney, Alex Douglas, explains the steps to remove a trustee or personal representative.
One of the most important decisions you will make when you do your estate planning is choosing who will be in charge of your estate or your trust to administer your affairs after you’re gone. Whether that person is your child or children, trusted friend, or a bank, ShuffieldLowman can assist with your planning decisions in order to avoid unnecessary potential legal fees and litigation. Watch as ShuffieldLowman fiduciary litigation attorney, Alex Douglas, explains the importance of choosing a fiduciary for your estate planning documents.
In honor of Elder Abuse Awareness Day on June 15th, ShuffieldLowman’s Alex Douglas was recently featured on The Florida Bar Podcast to speak about different forms of elder abuse and what people can do to protect themselves and their loved ones. Listen to this episode to hear about the different resources available, including the elder abuse hotline, and to learn about the complexities of guardianship. Alex practices in the area of fiduciary litigation with extensive experience in trust, probate and guardianship litigation.