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Florida Trust and Estate Litigation Law Firm

Tampa Bay, Florida Trust Litigation Attorneys

In Florida, PersanteZuroweste is well known in the field of trust litigation, and we handle all types of claims involving trust disputes and the actions of trustees. We litigate disputes on behalf of beneficiaries, trustees, and other interested parties.

Trusts are complicated instruments that are valuable in estate planning. Although some trusts are considered will substitutes, they differ from wills in several aspects.  For instance, a trust may contain provisions for the financial management of a settlor’s assets.  Accordingly, while problems with a will necessarily arise after death, problems with a trust impact the settlor while he or she is alive. Unfortunately, people sometimes abuse the fact that, unlike a probate administration, trust administration is not monitored by a court.

What are the Grounds for Contesting a Trust in Florida?

• Trust Contests: A trust contest can be initiated in a variety of ways. An interested person may bring an action to challenge the validity of a trust, to interpret trust provisions, to set aside conveyances to trusts, to include or exclude beneficiaries, remove trustees, and reform the trust. Many of the same claims asserted in will contests can be made in trust contests — particularly lack of mental capacity, undue influence, duress, forgery, fraud, and mistake. Trusts that were improperly created, executed, or funded may also be set-aside.
• Trust Reformation/Construction: The law provides that even unambiguous provisions of a trust may be reformed, or re-written, where there is sufficient evidence that the language of the trust does not reflect the settlor’s intent.
• Trust Fraud: A trust fraud usually involves the intentional use of deceit, a trick, or some dishonest means to deprive the trust or its beneficiaries of money, property or a legal right.
• Undue Influence: Generally, undue influence occurs when a person exerts undue force against someone to execute a trust or amendment to leave assets in a particular way. The key element is that the influence was so great that the grantor of the trust lost his or her ability to exercise his or her judgment and could not refuse to give in to the pressure.
• Lack of Mental Capacity: A person who executes a trust (a grantor) must have the requisite mental capacity to do so. If a grantor lacks mental capacity at the time he or she signs the trust, that trust may be invalidated.
• Surcharge of Trustee: When a trustee commits bad acts, the trustee may be subject to a surcharge action, in which the trustee is forced to pay money back to the trust.
• Removal of Trustee: Removal of a trustee is a drastic remedy and usually results from an intentional violation of a fiduciary duty or from other wrongful conduct, especially where the wrongful conduct is likely to continue without removal of the trustee.
• Excessive Trustee Compensation: Trustees are only entitled to receive a reasonable fee for their services, and are not entitled to excessive compensation.
• Self-Dealing: Self-dealing occurs when a trustee takes advantage of his or her position as trustee in a transaction and acts for his or her own interests, rather than for the interests of the beneficiaries of the trust.
• Breach of Fiduciary Duty: A trustee is a fiduciary to the trust and its beneficiaries, and must uphold the highest duty of care in administering his or her duties. A trustee’s fiduciary duty is breached when the trustee fails to live up to the required duty of care owed to the trust and its beneficiaries. 
• Trustee Investment Losses: Trustees are held to the standard of “a reasonably prudent trustee” in investing trust assets. Trustees can become personally liable when they fail to live up to their duty to properly invest.
• Forgery and Alteration of Instruments: The court may invalidate a forged or altered trust instrument.

A Brief Background of Florida Trusts

History of Trusts

The concept of a trust originated in medieval England. Friars were not allowed to own property, so gifts were made to responsible people to hold property for the “use” of the friars. This system of “uses” is what has transformed into what we now know as trusts.

Florida Trusts

What is a trust?

A trust is a legal entity created under the law by a property owner to hold property for the benefit of another. Trusts have an explicit, stated purpose for existing.  Trusts can own, buy, and sell all types of property. In some cases, a trust can exist for any duration of time or for an unlimited period of time.The common characteristic of all trusts is the holding of property, real or personal, for the benefit of another.  Sometimes, property is formally transferred by its owner into the trust; other times, a property owner will declare he is holding certain property in trust for another.  In either scenario, the property owner relinquishes his individual ownership rights to the trust.

There are several types of trusts. In Florida, the person who creates a trust is called the “settlor” or “grantor.” If a settlor transfers property into the trust during his/her lifetime, the trust is an “inter vivos trust.” If settlor desires to transfer property into the trust pursuant to the settlor’s will, the trust is a “testamentary trust.”

A trust may also be revocable, which means that the settlor can modify or terminate the trust during his/her lifetime. A revocable trust is most commonly used to avoid probate because assets are transferred to the trust during the settlor’s lifetime. Unlike a revocable trust, an “irrevocable trust” generally cannot be terminated once created.

Florida Trustees

Trusts are controlled and administered by a person so nominated in the trust instrument called a trustee. The trustee is a "fiduciary" to the beneficiaries of the trust, and the law imposes on trustees the highest duty of care in administering their duties.  All trustees must act with the “punctilio of honor,” in the famous words of Justice Benjamin Cardozo in the United States Supreme Court opinion, Meinhard v. Salmon. 

In general, a trustee will:

• Hold and protect trust property
• Invest trust assets
• Distribute trust income or principal to the beneficiaries
• Make tax decisions relating to the trust
• Keep records of all trust activities and transactions
• Provide accounting statements and tax reports to trust beneficiaries
• Answer questions and concerns beneficiaries have relating to the trust

If a trustee fails to act with the required honor and care, the trustee may become personally liable under the law.  Beneficiaries can bring suit against the trustee for breach of fiduciary duty, which can involve not only the trustee's intentional acts of wrongdoing, but also any unintentional acts of negligence.

Why is the law governing trustees so strict?  Because the trustee holds actual legal title to the trust assets and must administer, or oversee, these assets according to the express terms and provisions of the actual trust documents.  The beneficiaries are those entitled to receive benefits from the trust; however, they do not hold legal title to the trust assets themselves.  The trustee is the property owner for the life of the trust.  The law is strict in recognition of the temptations that are inherent in this scenario. 

Florida Trust Litigation

Contact Us:

PersanteZuroweste handles Trust and Trustee litigation matters. If you believe that you may need legal assistance regarding a Florida trust litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.