Can a Beneficiary Require a Trustee Bond in Florida?

Can a beneficiary require a trustee to post a bond in Florida? Sometimes, yes. A Florida court may require a trustee to post a bond only if it finds the bond is needed to protect the beneficiaries’ interests, or when the trust requires one and the court has not dispensed with the requirement. This guide explains how that works and what a court looks at.

Can a Florida court require a trustee to post a bond?

Yes. A court may require a trustee to post a bond under Fla. Stat. § 736.0702. The trustee gives bond to secure performance of the trustee’s duties only if the court finds a bond is needed to protect the beneficiaries. The trust’s own terms can also call for a bond, as long as the court has not dispensed with the requirement.

In plain terms, a fiduciary bond is a financial safeguard tied to the trustee’s duties. It secures the trustee’s performance of the job. The court controls the details. Under § 736.0702(2), the court may set the amount, the trustee’s liabilities under the bond, and whether sureties are needed. It may also modify or end the bond at any time.

A bond is separate from day-to-day administration. A trustee must still run the trust under § 736.0801, whether or not a bond is ordered. Think of the bond as an added protection on top of those duties.

When can a beneficiary ask the court to require a bond?

A beneficiary raises the issue through the court, in a trust proceeding. The court’s listed matters include determining other matters involving trustees and beneficiaries, under § 736.0201(4)(g).

The usual concern is simple. A beneficiary worries that trust property is not being protected. Or the beneficiary fears the trustee’s management puts the trust at risk. The statute requires a trustee to take reasonable steps to control and protect trust property, under § 736.0809. When that duty looks unmet, a beneficiary has a reason to bring the matter to court.

Concerns often start with missing information. A beneficiary who cannot see the trust’s assets or activity may feel uneasy without knowing why. Getting that information is often the first practical step, covered below.

What the court looks at when deciding on a bond

The core test is whether a bond is needed to protect the beneficiaries’ interests. That test comes from § 736.0702(1). It is the first question the court answers.

The court looks at the facts in the case in front of it. Relevant facts can include the kind of property in the trust, how the trustee holds and manages it, and whether the trustee has kept the beneficiaries informed.

Concerns about administration can help the court decide whether a bond is needed, because a trustee must give bond only if the court finds that a bond is needed to protect the interests of the beneficiaries, or if the trust’s terms require one and the court has not dispensed with the requirement. A beneficiary who gathers specific, documented concerns gives the court something concrete to weigh. Vague worry carries less weight than a clear record.

If the court does order a bond, it sets the terms. Fla. Stat. § 736.0702 provides: “(1) A trustee shall give bond to secure performance of the trustee’s duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement. (2) The court may specify the amount of a bond, the trustee’s liabilities under the bond, and whether sureties are necessary. The court may modify or terminate a bond at any time.” The court can also change or end the bond later, under § 736.0702(2).

Can the trust document waive or excuse the bond?

A trust document can address the bond, but it cannot remove the court’s power over it. Under § 736.0105(2)(p), the terms of a trust do not override the court’s power under § 736.0702 to require, dispense with, modify, or terminate a bond, and under § 736.0702 a bond required by the terms of the trust applies only if the court has not dispensed with the requirement.

If the trust requires a bond, the trustee must post one, unless the court exercises its power under § 736.0702 to dispense with the requirement. That changes only if the court has dispensed with the requirement, as § 736.0702(1) provides. Under Fla. Stat. § 736.0702, “A trustee shall give bond to secure performance of the trustee’s duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.” A bond clause and a waiver clause both sit alongside the court’s authority.

A waiver does not end every protection. The trustee must still administer the trust in good faith, under § 736.0801.

Trust terms can also shift responsibilities. The drafting of the instrument can change who answers for what.

How a bond request fits into a trustee’s duties

A bond request is one tool among several. It sits beside the trustee’s core duties and the court’s other remedies.

The trustee must administer the trust in good faith, in line with its terms and the beneficiaries’ interests, under § 736.0801. If those duties slip, the court has broader options. Under § 736.1001(2), to remedy a breach of trust that has occurred or may occur, the court may compel the trustee to perform the trustee’s duties, order a trustee to account, suspend the trustee, or reduce or deny compensation to the trustee, among other remedies.

Removal is another route. The settlor, a cotrustee, or a beneficiary may ask the court to remove a trustee, under § 736.0706(1). The court may remove a trustee for a serious breach of trust, under § 736.0706(2)(a). While that request is pending, the court may order relief to protect the trust property, under § 736.0706(3).

For the full list of duties after a settlor dies, read our guide on trustee duties after a settlor dies in Florida.

How a bond differs in probate estates

A personal representative’s bond in a probate estate follows a separate statute. Under Fla. Stat. § 733.402, every fiduciary to whom letters are granted must file a bond unless the will or the court waives it. Fla. Stat. § 733.402 provides: “(1) Unless the bond requirement has been waived by the will or by the court, every fiduciary to whom letters are granted shall execute and file a bond with surety, as defined in s. 45.011, to be approved by the clerk without a service fee.” These requirements do not apply to banks and trust companies authorized by law to act as personal representative. The bond shall be payable to the Governor and the Governor’s successors in office, conditioned on the performance of all duties as personal representative according to law. The bond must be joint and several.”

The court can waive, require, increase, or decrease that bond. It can act on petition by an interested person or on its own motion, under § 733.402(4). The section does not apply to banks and trust companies authorized by law to act as personal representative, under § 733.402(3).

The distinction is practical. A trust case concerns a trustee managing trust property. A probate case concerns a personal representative administering a decedent’s estate. The bond rule you need depends on which role is at issue.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries. For a related question about fiduciary pay, see how a personal representative is paid in Florida.

Information a beneficiary may need before raising a bond request

A beneficiary usually needs the trust document and account information first. Those records show what the trustee should be doing and what has happened to the trust property.

Upon reasonable request, a trustee must give a qualified beneficiary a complete copy of the trust instrument, under § 736.0813(1)(c). The trustee must also share relevant information about the trust’s assets and liabilities and the particulars of administration, under § 736.0813(1)(e).

For an irrevocable trust, the trustee must provide an accounting to each qualified beneficiary at least annually and on termination or change of trustee, under § 736.0813(1)(d), unless the trustee is a family trust company, licensed family trust company, or foreign licensed family trust company, in which case the trust terms may permit accounting only at termination of the trust, upon removal, resignation, or other event ending the trustee’s service, or upon a qualified beneficiary’s demand. While a trust is revocable, these duties run only to the settlor, under § 736.0813(4).

Useful records include the trust instrument, any accountings received, and statements showing trust assets. Keep a written list of each request, the date, and the response. For more on document access, see the guide to the right to see a trust document in Florida.

Quick answers

Talking through a trustee concern with Trust Counsel

If a trustee’s handling of trust property leaves you uneasy, you may be wondering whether a bond is an option. Trust Counsel, PL is located in Coral Gables, Florida, and its only office is there. Leslie V. Marenco is the responsible lawyer for this page.

The firm offers a free first consultation, which is confidential and carries no obligation to continue. To learn more about trust disputes, visit the trust litigation attorney hub. If a trustee’s handling of trust property has you uneasy, contact Trust Counsel to talk through whether a bond request fits your situation.