When a Florida Trustee Dies, Who Steps In and What Happens Next?

Responsible lawyer: Leslie V. Marenco, Trust Counsel, PL, Coral Gables, Florida.

The Short Answer: Who Takes Over When a Florida Trustee Dies or Becomes Incapacitated

The trust document comes first. It names the successor trustee and sets the order they serve in. If it names no one, or the named person can’t or won’t serve, a court may need to appoint a new trustee.

A trustee’s death, and an adjudication that a trustee is incapacitated, create a vacancy in the trusteeship. The trust keeps existing. Its property stays in the trust, and someone still has to hold it, protect it and manage it.

This page covers three situations: a trustee who has died, a trustee who can no longer act because of incapacity, and a trust where no one is available to serve. Each one follows a different path. The order of the steps matters.

What the Trust Document Says About Successor Trustees

The trust document is the first place to look. Its wording decides most successor trustee questions, so read it before anyone acts.

Look for three things: the named successor, the order of succession, and any method for accepting the role. A person accepts a trusteeship by substantially complying with a method of acceptance the trust sets, and if the trust does not expressly make that method exclusive, accepting trust property or exercising trustee powers also counts (Fla. Stat. § 736.0701). If the trust sets no method, or sets one that is not expressly made exclusive, accepting trust property or carrying out trustee duties counts (Fla. Stat. § 736.0701).

Silence can cost the named person the role. A designated trustee who does not accept within a reasonable time after learning of the designation is deemed to have declined it (§ 736.0701).

If the trust has cotrustees, the picture changes. A vacancy need not be filled while one or more cotrustees remain in office (§ 736.0704). Cotrustees who cannot agree may act by majority decision (Fla. Stat. § 736.0703).

When No Successor Is Named or Able to Serve

A vacancy that must be filled follows a set order. The named successor comes first. Beneficiaries come next. The court comes last.

For a noncharitable trust, a required vacancy must be filled in this order: a person named in the trust terms, then a person appointed by unanimous agreement of the qualified beneficiaries, then a person appointed by the court (§ 736.0704).

This means a court isn’t always the first step. For a noncharitable trust, if the qualified beneficiaries unanimously agree on one person, that agreement can fill a required vacancy, after any successor the trust names. If they can’t agree, the court steps in.

A court may also appoint an additional trustee or special fiduciary when it finds that necessary. That can happen even without a vacancy (§ 736.0704).

Who the court picks depends on the facts of the trust and the people involved. Waiting can leave trust property unmanaged while a family argues. Florida law requires a trustee to take reasonable steps to protect trust property (Fla. Stat. § 736.0809).

How Incapacity Differs From Death

Incapacity and death both create a vacancy, but the trigger and the timing differ. Florida’s statute refers to a trustee who is “adjudicated to be incapacitated.” That wording points to a formal finding, not just a family’s observation (§ 736.0704).

Death is simpler. No one has to decide whether the trustee can still act.

Incapacity raises harder questions. The trust may explain how incapacity is determined and when the successor begins to serve. A clear written method can prevent delay and arguments about timing.

A special rule applies while the trust is revocable. The trustee’s duties extend only to the settlor during that time (Fla. Stat. § 736.0813). Under Fla. Stat. § 736.0813(4), the trustee’s duties under that section extend only to the settlor while a trust is revocable.

Who Can Serve as Successor Trustee

A successor trustee can be a family member, a trusted friend, a bank or trust company, or an attorney. The trust document may limit who qualifies, so check it first.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries.

Before accepting, a successor should weigh a few factors. Consider the time the work will take, comfort with money and records, and willingness to report to beneficiaries. A trustee of an irrevocable trust must give each qualified beneficiary an accounting at least annually and on termination of the trust or change of trustee, unless the beneficiary waives it in writing; for a family trust company trustee, the trust terms may limit accounting to termination, removal, resignation or other event resulting in a trustee ceasing to serve as a trustee, or a beneficiary’s demand (§ 736.0813).

A successor trustee, like any trustee, must administer the trust solely in the interests of the beneficiaries. That duty shapes every decision the successor makes.

What a Successor Trustee Must Do First

The first job is securing the trust property. A trustee shall take reasonable steps to take control of and protect trust property (§ 736.0809). That means finding bank accounts, real estate and other assets, and keeping them safe.

Notice comes next. The notice covers the trust’s existence, the identity of the settlor or settlors, the right to request a copy of the trust instrument, the right to accountings, and that the fiduciary lawyer-client privilege in s. 90.5021 applies to the trustee and any attorney the trustee employs (§ 736.0813).

For certain trusts, a notice of trust must also be filed with the court after the settlor dies. It must state the settlor’s name and date of death, the trust’s title and date, and the trustee’s name and address (Fla. Stat. § 736.05055).

A successor is not personally liable for a prior trustee’s actions in certain listed circumstances. One example is when an eligible beneficiary does not deliver a written request within 6 months after the successor trustee accepts the trust, where the successor trustee has given written notice of acceptance advising that the right to proceed will be barred unless the written request is delivered within that period (Fla. Stat. § 736.08125).

What Beneficiaries Can Ask For and What a Trustee Cannot Do

Beneficiaries have concrete rights. On reasonable request, a trustee must give a qualified beneficiary a complete copy of the trust instrument. The trustee must also share relevant information about assets, liabilities and administration (§ 736.0813).

The accounting right is central. An irrevocable trust’s trustee must account to each qualified beneficiary at least annually and on termination of the trust or change of trustee, unless the trustee is a family trust company whose trust terms limit accounting to termination, removal, resignation or other event resulting in a trustee ceasing to serve as a trustee, or a beneficiary’s demand. A beneficiary may waive that duty, but only in writing (§ 736.0813).

Limits apply too. A trustee must administer the trust solely in the beneficiaries’ interests (§ 736.0802). Using trust assets for the trustee’s own benefit breaks that duty.

A trustee who breaks these duties can face removal. The court may remove a trustee who has committed a serious breach of trust (§ 736.0706).

Who Might Not Be a Good Choice for Trustee

Some choices cause trouble from the start. A person who has a personal stake in the trust can face a conflict with the beneficiaries. The duty of loyalty requires the trustee to put the beneficiaries first (§ 736.0802).

Other warning signs include weak record-keeping, a history of disputes, and trouble working with cotrustees. Lack of cooperation among cotrustees can be a ground for removal when it substantially impairs administration (§ 736.0706).

A trust creator can address these concerns when drafting the trust. The document can name backups and set conditions for who may serve.

If a trustee finds the role doesn’t fit, resignation is possible. A trustee may resign in accordance with the procedure set forth in the trust instrument, or, notwithstanding the trust’s terms, on at least 30 days’ notice to the qualified beneficiaries, the settlor if living, and all cotrustees, or with court approval (Fla. Stat. § 736.0705).

When a Dispute Calls for a Trust Litigation Attorney

Trust administration is the routine work. It includes collecting assets, giving notices, keeping accounts and paying bills. Trust litigation begins when that work is contested in court.

Common triggers include a delayed successor, a disputed incapacity, a refusal to share information, and a suspected breach. A trustee who has resigned or been removed must deliver trust property within a reasonable time, subject to a reserve for debts, expenses and taxes (Fla. Stat. § 736.0707).

The settlor, a cotrustee or a beneficiary may ask the court to remove a trustee. The court may also act on its own (§ 736.0706). Pending a decision, the court can order relief to protect the trust property.

Related Reading and Next Step

Related topics include trust litigation and trustees sued over investment decisions. Each one connects to the questions raised here.

Common Questions