Discovery in a Florida Trust Contest: What to Expect

Discovery is the stage where each side asks the other for documents, records and testimony before trial. Here is how discovery in trust contest Florida cases usually works, step by step. Trust Counsel, PL advises and represents trustees, personal representatives and beneficiaries. Leslie V. Marenco is the responsible lawyer for this page. The firm’s only office is in Coral Gables, Florida.

What discovery means in a Florida trust contest

Discovery is the fact-gathering phase of a lawsuit. A trust dispute is a lawsuit.

Probate and guardianship cases use the same tools. Florida Probate Rule 5.080 provides that specified Florida Rules of Civil Procedure, including Rule 1.280 (general provisions governing discovery) and Rule 1.410 (subpoena), apply in all probate and guardianship proceedings.

The rule also says a formal adversary proceeding is not needed to use these tools. Any interested person may use them. Timing and scope change from case to case.

Trust accounting and information demands under Fla. Stat. 736.0813

A trustee must keep qualified beneficiaries reasonably informed about the trust and how it is run. That duty comes from Fla. Stat. § 736.0813. On reasonable request, the trustee must give a qualified beneficiary a complete copy of the trust instrument, but while a trust is revocable the trustee’s duties under this section extend only to the settlor.

Upon reasonable request, the trustee must also provide a qualified beneficiary with relevant information about the trust’s assets, liabilities and administration. For an irrevocable trust, the trustee must provide an accounting to each qualified beneficiary at least once a year and on termination of the trust or change of trustee, unless the trustee is a family trust company, licensed family trust company, or foreign licensed family trust company, whose trust terms may limit accounting to termination of the trust, the removal or resignation of the trustee or other event resulting in the trustee ceasing to serve, or a beneficiary’s demand. The trustee also owes one when the trust ends or the trustee changes.

An accounting must be easy to understand. It must identify the trust, the trustee and the period it covers. It must show cash and property transactions and any compensation paid to the trustee and the trustee’s agents, as § 736.08135 describes.

Start with a written request. Date it, send it in a way you can prove, and keep a copy. That record shows what you asked for and when. If the information is not provided, a court can review and settle accounts under § 736.0201.

Time limits that affect when a trust claim must be brought

A beneficiary generally has six months to sue over a matter the trustee adequately disclosed. Under Fla. Stat. § 736.1008, a beneficiary is barred from bringing an action against a trustee for breach of trust on a matter adequately disclosed in a trust disclosure document unless the proceeding is commenced within 6 months after receipt from the trustee or a trust director of that disclosure document or of a limitation notice that applies to it, whichever is received later. Under Fla. Stat. § 736.1008, the case must be started within six months after receiving a trust disclosure document or a limitation notice, whichever is received later. Fla. Stat. § 736.1008 reads: “Unless sooner barred by adjudication, consent, or limitations, a beneficiary is barred from bringing an action against a trustee for breach of trust with respect to a matter that was adequately disclosed in a trust disclosure document unless a proceeding to assert the claim is commenced within 6 months after receipt from the trustee or a trust director of the trust disclosure document or a limitation notice that applies to that disclosure document, whichever is received later.”

A trust disclosure document includes a trust accounting or any other written report from the trustee. Keep every transmittal.

Contests of a revocable trust follow a different limit. Under § 736.0604, an action to contest the validity of a trust that was revocable at the settlor’s death is barred if not commenced within the earlier of the chapter 95 time or six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.

Gathering records takes time. These periods still run from their own triggers, so check the dates early in any trust matter.

Requests for production of documents and financial records

A request for production asks the other side to hand over documents, electronic records and other items. In probate and guardianship cases, that request follows Rule 1.350 under Florida Probate Rule 5.080.

Common requests in trust cases include the trust instrument and every amendment, drafts and earlier versions, account statements, tax returns, receipts, distribution records, and letters or emails about the trust.

The receiving side can object. A good objection explains the reason for withholding each item. Vague objections often lead to motions.

Costs can shift. Under Rule 5.080, the court has broad discretion to limit the scope, place and manner of discovery. It can also assess costs, including attorneys’ fees, against the party asking for the discovery or against beneficiaries. The court weighs the benefit of the discovery. A broad request can cost the asking side money, so requests should match what matters.

Subpoenas to banks, brokerages and other nonparties

Rule 1.410, the subpoena rule, is one of the Florida Rules of Civil Procedure that apply in probate and guardianship proceedings under Florida Probate Rule 5.080. Rule 1.351 covers production of documents without a deposition.

In trust disputes, subpoenas often target bank and brokerage records. They also reach transfer histories, signature cards and accountant files. These records show who moved money, when, and where it went.

Because the court can limit discovery under Rule 5.080, the scope of a subpoena can be narrowed.

Depositions, interrogatories and requests for admission

A deposition is sworn testimony taken outside the courtroom. Rule 1.310 governs depositions upon oral examination, as adopted by Rule 5.080. Trustees, beneficiaries and other witnesses can be deposed.

Answers can narrow what is still in dispute.

These tools build on each other. Documents often lead to new questions. Deposition answers can shape the next round of requests. Gaps in the paper record often show up when a witness is questioned.

What a party should preserve from the start

Preserve every document, message and record that relates to the trust. Do not delete or edit any of them once a dispute is expected.

Keep originals of trust documents, estate planning files, account statements and written communications with the trustee or other beneficiaries. Texts, voicemails, social media posts and emails all count. Routine auto-delete settings on phones and email can erase records. Turn them off early.

Communications with your lawyer get separate protection. Under Fla. Stat. § 90.5021, a communication between a lawyer and a client acting as a fiduciary is privileged. That includes a trustee or personal representative. The crime or fraud exception still applies. Talk with counsel before producing anything you think is privileged.

Read any consent or release before you sign it. Under § 736.1012, a beneficiary’s consent or release can bar a later breach claim. The protection does not apply if the consent was induced by the trustee’s improper conduct. It also does not apply if the beneficiary did not know their rights or the key facts.

Objections, protective orders and how a case moves forward

A court can narrow discovery, and it can control distributions while a contest is pending. Under Fla. Stat. § 736.08165, the trustee keeps administering the trust during the case. No distribution may go against the rights of people who could be affected by the outcome. Fla. Stat. § 736.08165 reads: “Pending the outcome of a proceeding filed to determine the validity of all or part of a trust or the beneficiaries of all or part of a trust, the trustee shall proceed with the administration of the trust as if no proceeding had been commenced, except no action may be taken and no distribution may be made to a beneficiary in contravention of the rights of those persons who may be affected by the outcome of the proceeding.”

On good cause and after notice, a court can allow a distribution with conditions. It may require a bond. That is a key point for anyone waiting on a payment.

Some trust disputes settle through mediation before trial. Unresolved disputes go to the court for decision.

Frequently asked questions