Is Breach of Fiduciary Duty a Tort in Florida?

Short answer: is breach of fiduciary duty a tort?

Yes, in general terms. A tort is not a crime. One private person brings the claim against another.

The same conduct can also be framed as a breach of trust under Florida trust law. So the label depends on the claim being brought. A trustee’s violation of a duty owed to a beneficiary is a breach of trust under Fla. Stat. § 736.1001.

Families often search this question because something about a trustee or personal representative seems wrong. They want a name for it. The label shapes which remedies and rules come into play. For background on how these disputes fit together, see our trust litigation attorney overview.

What creates a fiduciary duty?

Common examples include a trustee over trust property, a personal representative over estate assets, and a guardian over a ward.

The duty asks for loyalty and care. The fiduciary must manage the property for the people it belongs to, not for personal gain. Florida law states the trustee’s core rule plainly. A trustee “shall administer the trust solely in the interests of the beneficiaries” under Fla. Stat. § 736.0802.

A personal representative (often called an executor) must meet the same standard. The personal representative is a fiduciary who observes the standards of care that apply to trustees, under Fla. Stat. § 733.602.

Roles matter. Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries. The American College of Trust and Estate Counsel notes that fiduciary and legal services are separate roles and may involve separate fees, as discussed in ACTEC’s podcast on lawyers as trustees.

What must you prove for the tort?

First, a fiduciary duty existed. Second, the fiduciary broke that duty.

Here is a simple example. A trustee uses trust funds to pay a personal business debt. The duty exists because, as between a trustee and the beneficiaries, the trustee must administer the trust solely in the interests of the beneficiaries. The breach happens because the payment helped the trustee, not the beneficiaries. The damage is the money lost from the trust. The cause is the payment itself.

For personal representatives, the statute is direct. A personal representative “is liable to interested persons for damage or loss resulting from the breach of this duty,” under Fla. Stat. § 733.609.

Each element turns on the evidence. A missed report is not the same as a self-dealing sale. The records and timeline decide which facts count.

Tort claim or breach of trust claim?

A breach of trust is the term trust law uses. Florida sets out remedies for it in the trust code. A tort claim asks for damages for harm the wrong caused. In one dispute, both labels can fit the same conduct.

The overlap matters because remedies differ. A court may compel a trustee to pay money or restore property. A court may order a trustee to account or appoint a special fiduciary to take possession of trust property and administer the trust.

Trust law also sets deadlines. For a matter a trustee has adequately disclosed in a trust disclosure document, the time a beneficiary has to start a proceeding depends on the applicable limitation period, so a beneficiary should review that deadline with counsel promptly. Treat that as a reason to act early.

For a fuller breakdown, read about what is classed as a breach of trust.

What relief can a court award?

A court can order money, restore property, or change who runs the trust or estate. The statute sets the framework for these remedies.

One remedy under Fla. Stat. § 736.1001 is that a court may compel the trustee to redress a breach of trust by paying money or restoring property or by other means. Where a breach favors one beneficiary over another or is an abuse of the trustee’s discretion, the court may also adjust distributions to restore beneficiaries to their appropriate positions.

Equitable remedies matter too. It may trace and recover property wrongfully disposed of. It may reduce or deny the trustee’s compensation, as stated in Fla. Stat. § 736.1001.

A court may remove a trustee who has committed a serious breach of trust, under Fla. Stat. § 736.0706.

If assets need protection while a case is pending, see an emergency injunction to freeze trust assets. For a case where a court appoints a trustee, see court-appointed trustee in a trust dispute. Each case turns on its own record, and no particular result can be promised.

What is not a fiduciary responsibility?

Two people can trust each other and still deal at arm’s length.

Ask who controlled whose property. A seller and buyer in an arm’s-length sale have not taken on the role of a trustee who manages a family trust. Whether a duty exists depends on the facts, including who had control and what the parties agreed.

Guardians face strict conflict rules. Unless the court approves it in advance, or the relationship existed before appointment and was disclosed to the court in the petition for appointment of guardian, a guardian may not acquire a pecuniary interest adverse to the ward. Any prohibited activity is voidable during the guardianship or by the personal representative of the ward’s estate, and the guardian can face removal and personal liability through a surcharge proceeding, under Fla. Stat. § 744.446.

Talk with Trust Counsel about your situation

If an account from a trustee or personal representative looks wrong, you may be deciding what to do next while protecting a parent’s trust or a sibling’s share. Leslie V. Marenco is the responsible lawyer for this page. Our only office is in Coral Gables, Florida, and we serve clients in Florida.

Your first consultation is free, confidential, and carries no obligation to continue. Call (305) 707-7126 or schedule online to book it.

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