Can a Trustee Sell Trust Property During a Trust Contest?

Short Answer: Can a Trustee Sell Trust Property During a Trust Contest in Florida?

Often, yes, but only within limits. If you’re asking whether a trustee can sell trust property during a trust contest in Florida, the answer usually turns on two things. One is what the trust allows. The other is what the contest asks the court to decide.

Florida law generally requires the trustee to keep running the trust while a validity dispute is pending. Fla. Stat. § 736.08165 says the trustee proceeds as if no case had been filed. There is one major exception. No action may be taken, and no distribution made, in a way that goes against the rights of people who may be affected by the outcome.

That exception matters for any sale. A trustee can have the power to sell and still face a challenge if the sale ignores the people the contest could affect. The power and the right to challenge it exist at the same time.

Where a Trustee’s Power to Sell Comes From

The trust document is the first place to look. It can give the trustee broad or narrow authority over trust property.

Florida law also gives trustees a default power to sell.

The trust’s terms and the Florida Trust Code both matter, so read the trust instrument first to see what it says about sales.

A contest does not switch these powers off by itself. Under the pending-proceeding rule, the trustee keeps going as if no case had been filed. What changes is how the trustee must use those powers. The trustee cannot act against the rights of people the case could affect.

Duties That Still Apply While a Contest Is Pending

The trustee must administer the trust in good faith, following its terms, its purposes and the beneficiaries’ interests. See Fla. Stat. § 736.0801.

The trustee must also administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries. Under Fla. Stat. § 736.0802, as between a trustee and the beneficiaries, a trustee shall administer the trust solely in the interests of the beneficiaries. This duty is why sales to insiders draw close review, unless the trust is being administered by a family trust company and the sale is authorized by s. 662.132(4)-(8). Fla. Stat. § 736.0802 reads: “(b) This subsection does not apply to a trust being administered by a family trust company, licensed family trust company, or foreign licensed family trust company operating under chapter 662 if the sale, encumbrance, or other transaction is authorized by s. 662.132(4)-(8).”

Under Fla. Stat. § 736.0804, the trustee must administer the trust as a prudent person would. That means reasonable care, skill and caution. A rushed sale with no valuation may fail that test, even if the trust allows the sale.

The trustee must also take reasonable steps to control and protect trust property, under Fla. Stat. § 736.0809. And the trustee must keep qualified beneficiaries reasonably informed, under Fla. Stat. § 736.0813.

What a Pending Contest Can Change About a Sale

Under Fla. Stat. § 736.08165, a party can move for a court order after notice to interested persons. The court may, on good cause shown, authorize the trustee to act. It can attach conditions, including a bond posted by the beneficiary.

If a sale closes anyway, the remedies change. Under Fla. Stat. § 736.1001, to remedy a breach of trust that has occurred or may occur, and subject to § 736.1016, a court may void an act of the trustee. Subject to § 736.1016, a court may impose a lien or constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds. The court may also suspend or remove the trustee, or reduce or deny compensation. These remedies follow a breach of trust.

A buyer’s position is different. Under Fla. Stat. § 736.1016, a person other than a beneficiary who deals with a trustee in good faith and for value is protected. That protection applies only without knowledge that the trustee is exceeding or improperly exercising the powers. Whether any remedy works in a given case depends on the facts.

How Beneficiaries Can Protect Trust Assets During a Contest

Beneficiaries can protect trust assets by acting early and putting every request in writing. A written record helps if a court later reviews a sale.

Start by asking for the trust instrument. A qualified beneficiary can get a complete copy on reasonable request, under Fla. Stat. § 736.0813. Ask in the same letter for relevant information about assets, liabilities and administration.

Next, ask for a trust accounting. A proper accounting must show all cash and property transactions, including compensation paid to the trustee. See Fla. Stat. § 736.08135.

Ask in writing for advance notice of any proposed sale, listing or transfer. Request an appraisal or other documented valuation before a sale goes forward. Keep copies of every letter, email and reply, and note the dates.

If the trustee refuses or delays, a motion to the court may be the next step.

Warning Signs That a Trust Property Sale May Be Challenged

These signs do not prove wrongdoing. Each one is a reason to ask questions in writing and to review the trust papers.

• A sale to the trustee, a relative or a business the trustee controls. These sales raise loyalty questions under the duty of loyalty.
• A sale below documented value, or with no appraisal. The prudence standard asks for reasonable care and caution.
• A trustee who moves trust assets to himself or herself. That raises a self-dealing question under the duty of loyalty.
• Delay or refusal to provide the trust instrument, accountings or asset information. Upon reasonable request, the trustee shall provide a qualified beneficiary with a complete copy of the trust instrument and, upon reasonable request, with relevant information about the assets and liabilities of the trust and the particulars relating to administration, but while a trust is revocable these duties extend only to the settlor (Fla. Stat. § 736.0813).

How Long Does a Beneficiary Have to Contest a Trust in Florida?

Florida sets time limits for trust contests. The right deadline depends on how the trust was set up and whether the trustee sent notice.

A contest of a revocable trust also cannot start too early. Under Fla. Stat. § 736.0207, a contest of a revocable trust may not begin until the trust becomes irrevocable by its terms or by the settlor’s death, but this does not prohibit such an action by the guardian of the property of an incapacitated settlor. The person contesting also carries the burden of proving the grounds for invalidity.

Waiting can affect both the contest and the ability to halt a sale. Review timing early. Pinning down a specific date takes the trust documents and the notice history.

Frequently Asked Questions

How Trust Counsel Can Help

Trust Counsel, PL focuses its practice on probate and trust litigation, trust administration and fiduciary advice. The firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel’s attorneys can serve individually as trustee or personal representative.

We serve clients in Florida. Our office is in Coral Gables. Leslie V. Marenco is the lawyer responsible for this page.

Readers who want more background can review the firm’s trust litigation attorney and trust administration attorney pages.

If a trustee has listed or sold trust property while your contest is pending, you don’t have to sort through the trust papers alone. Call (305) 707-7126 or schedule online for a free first consultation. It is confidential and carries no obligation to continue.