Who Should Be the Trustee of a Revocable Trust in Florida?

Short answer: who can be the trustee of a revocable trust

The person or company named in the trust document usually serves as trustee. The choice depends on the governing trust instrument and applicable Florida law. Many people create a revocable trust and name themselves as trustee while they are living. They also name one or more successor trustees to step in if they can no longer serve. A trustee can be a family member, a friend, a professional trustee, or an attorney serving individually. The person who creates the trust is called the settlor. Picking a trustee is less about finding one perfect person. It is about matching the role to the trust’s terms and the family’s situation. For a broader overview, read our professional trustee and personal representative services page.

Start with the trust document, which may control the choice

The trust document is the first place to look. It usually says who serves, in what order, and when a successor takes over. Florida law fills gaps where the document is silent. Under Fla. Stat. § 736.0105, the Florida Trust Code governs trustee duties and powers, except as the trust terms otherwise provide. The trust terms also prevail over most of that code’s provisions, with statutory exceptions. Which state’s law applies is tied to the trust’s terms as well. Under Fla. Stat. § 736.0107, a designated jurisdiction generally controls, if there is a sufficient connection to it. Before you assume who the trustee is, review the signed document and every amendment. A later amendment can change the named trustee. Under Fla. Stat. § 736.0602, a settlor may generally revoke or amend a revocable trust. The trust terms may provide a method for doing so, and where they do not provide an exclusive method, other methods permitted by the statute may apply, depending on the governing instrument and applicable law.

Individual trustees: family members, friends and other individuals

Individuals may be named for different reasons, which in some cases include existing relationships with the family, depending on the governing instrument and the facts of each case. Whether that fits depends on the trust instrument and the family’s circumstances. Several points often shape the choice. Consider availability, willingness to accept the role, comfort with recordkeeping, and how well the person communicates with beneficiaries. Living nearby can also matter.

Florida law describes recordkeeping duties for trustees. Under Fla. Stat. § 736.0810, a trustee is generally expected to keep clear, distinct and accurate records, and the scope of that duty depends on the governing instrument, applicable Florida law and the facts of each case. The statute also says trust property is kept separate from the trustee’s own property. How these duties apply depends on the trust terms and applicable law. An individual trustee may also manage trust assets and keep beneficiaries informed. Under Fla. Stat. § 736.0603, while a trust is revocable, a trustee’s duties are generally owed to the settlor, so how the duty to keep qualified beneficiaries reasonably informed under Fla. Stat. § 736.0813 applies depends on the governing instrument, applicable Florida law and the facts of each case.

A relative who serves may deal with several beneficiaries who see things differently. Clear written terms in the trust may help the trustee know what is expected.

Co-trustees and successor trustees: planning for the next person in line

A co-trustee serves alongside another trustee. A successor trustee takes over when the current trustee can no longer serve. Under Fla. Stat. § 736.0703, cotrustees who cannot reach a unanimous decision may act by majority decision. Depending on the governing instrument, applicable Florida law and the facts of each case, a cotrustee may be limited in delegating to another cotrustee a function the settlor reasonably expected them to perform jointly. The statute allows delegation of investment functions in certain cases.

Where the trust terms do not address vacancies, statutory rules may apply, depending on applicable law and the facts of each case. Under Fla. Stat. § 736.0704, a vacancy in a noncharitable trusteeship that must be filled is filled in this order. First, by a person named in the trust terms. Second, by unanimous agreement of the qualified beneficiaries. Third, by a person the court appoints. If one or more cotrustees remain, the vacancy need not be filled. It must be filled if no trustee remains.

A named backup can help avoid a gap. How that works depends on the instrument and the facts. Confirm that each named successor is still willing and able to serve.

Professional trustees and attorneys serving individually

A professional trustee is an individual or company that accepts the role, often for compensation. Professional trustees may bring administrative skills to the role. This depends on applicable law and the trust terms. Trust Counsel’s lawyer can serve individually as trustee or personal representative, depending on the governing instrument and applicable Florida law. Trust Counsel’s lawyer may advise or represent trustees, personal representatives and beneficiaries, depending on the governing instrument, applicable Florida law and the facts of each case. The firm itself does not serve as trustee or personal representative.

Compensation depends on the trust terms and the statute. Under Fla. Stat. § 736.0708, a trustee may be entitled to reasonable compensation if the trust does not specify an amount, depending on the governing instrument, applicable Florida law, court order and the facts of each case. The same statute limits compensation for an attorney who prepared the trust naming that attorney, unless its conditions and disclosures are met. A lawyer who serves as a trustee may, depending on the governing instrument, applicable Florida law and the facts of each case, be compensated for that service. Legal services and fiduciary services are separate roles and may involve separate fees. The Florida Office of Financial Regulation describes non-deposit trust companies that provide trustee and estate administration services. Continuity or neutrality may be possible benefits of a professional trustee. Whether they apply depends on the governing instrument and applicable law.

Questions to weigh when choosing a trustee

A few practical questions can guide the choice. Who knows the family and the assets? Who can keep records and handle tax filings, or will need help? Who can communicate well with beneficiaries? Who is willing to serve if administration becomes difficult? The answers may point toward an individual, co-trustees, or a professional trustee.

Compensation can also be part of the picture. Under Fla. Stat. § 736.0708, where the trust sets compensation, a court may allow more or less in certain cases. Those cases include duties that differ substantially from what the trust contemplated, or a specified amount that is unreasonably low or high.

A trustee who is also a beneficiary may face questions about how the role is viewed. Outcomes depend on the trust terms and applicable law. A trustee may also resign. Under Fla. Stat. § 736.0705, a trustee may resign under the procedure in the trust document. A trustee may also resign on at least 30 days’ notice to the qualified beneficiaries, the settlor if living, and the cotrustees, or with court approval. Circumstances change, so review the choice from time to time.

Common questions families ask about naming a trustee

Key takeaways

• The trust document names the trustee and successors. Florida law fills gaps, subject to the governing instrument.
• Individual, co-trustee, successor and professional trustee options each have possible advantages and tradeoffs.
• Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries.
• Review the document and any amendments when circumstances change.

Talk with a Coral Gables trusts and estates attorney about your situation

Many readers reach this question while naming a trustee for their own plan. Others are weighing a trustee decision for a parent after a health change or death. You may not be ready to hire anyone yet. To talk through the trust document and the trustee question, contact the Coral Gables office or call (305) 707-7126. Leslie V. Marenco is the responsible lawyer. The initial consultation is free, confidential and without obligation to continue. Fees are agreed between client and attorney according to the scope of work.