The key rules and regulations for trusts in Florida are in Chapter 736 of the Florida Statutes, called the Florida Trust Code. The code sets out how a trust is created, what a trustee must do, what beneficiaries can ask for, how long they have to challenge a trust, and what a court can do when a trustee falls short. This guide explains each rule in plain words.

What is the Florida Trust Code?

It is the main body of Florida law that governs trusts. When a trust question reaches a court, the trust document and this code are the starting points.

The code covers the whole life of a trust. It addresses how a trust is created, how it can be changed or revoked, what trustees owe to beneficiaries, how accounts are kept, when a trust can be challenged, and what remedies a court may order. Each topic has its own section, so reading them together gives a clearer picture than any single rule.

Two points matter most. First, the code works alongside the trust document. The document sets many details, such as trustee powers and distribution timing. Second, when the document is silent on a point, the statute fills the gap. That is why both the document and the code need a careful read.

Can you set up a trust without an attorney in Florida?

Florida law does not require a lawyer to create a trust. Instead, the code lists what a trust must have. Under Florida trust creation requirements, a trust is created only if:

• the settlor has capacity to create a trust
• the settlor shows an intent to create the trust
• the trust has a definite beneficiary, or is a charitable, animal-care or noncharitable-purpose trust
• the trustee has duties to perform
• the same person is not both the sole trustee and the sole beneficiary

A lawyer is not on that list.

Problems still arise. Common trouble spots include unclear wording, assets never moved into the trust, and bank or retirement beneficiary forms that conflict with the trust. These problems often lead to disputes later. Whether to hire a lawyer is your choice, and the statute does not require one.

Revocable trusts, irrevocable trusts and living trusts

A revocable trust can be changed or revoked by the settlor. An irrevocable trust generally cannot be changed on the settlor’s say-so. Under revocation and amendment rules, unless the trust terms expressly say the trust is irrevocable, the settlor may revoke or amend it; if a revocable trust has more than one settlor, community property may be revoked by either spouse acting alone but may be amended only by joint action of both spouses, while each settlor may revoke or amend the portion of the trust property attributable to that settlor’s contribution.

If the trust terms give no method, a later will or codicil that expressly refers to the trust can work. So can any other method showing clear and convincing evidence of the settlor’s intent.

A living trust is a trust created during the settlor’s lifetime. The label describes when the trust was made, not whether it can be changed. Read the document to see which type you have.

Funding matters too. A trust controls only the property actually moved into it. A signed document does not move a house, bank account or brokerage account by itself. Missing funding is a frequent source of problems.

Do all trusts have to go through probate?

Property titled in a trust’s name is handled under the trust terms. Property left outside the trust may still need a probate proceeding.

A pour-over will is a short will that directs leftover property into an existing trust. It works as a backup to funding, not a replacement for it. Because the will passes through the court process, it can still require probate for the assets it covers.

The answer for any estate depends on how each asset is titled and what the documents say. Look at every account, deed and beneficiary form before assuming a path. Small differences in titling can change which steps apply.

What does a trustee of an estate do?

The trust terms set the details, and the Florida Trust Code sets the minimum standards.

Two standards stand out. Under duty of loyalty, a trustee must administer the trust solely in the interests of the beneficiaries. Under prudent administration, a trustee must act as a prudent person would and exercise reasonable care, skill, and caution.

Day to day, trustee work usually includes:

• finding and listing trust assets
• managing and investing trust property
• keeping records of money coming in and going out
• paying valid debts and taxes
• distributing property as the trust directs

Trustees who skip these steps can face hard questions later. Good records make those questions easier to answer.

How soon must a trustee act after the settlor dies?

A trustee must notify qualified beneficiaries within 60 days after learning that an irrevocable trust exists. Under the duty to inform and account, that notice must include the items below, plus a statement that the fiduciary lawyer-client privilege applies to the trustee and any attorney the trustee employs:

• that the trust exists
• the identity of the settlor
• the beneficiary’s right to request a copy of the trust instrument
• the beneficiary’s right to accountings

A trustee who accepts the role must also give notice within 60 days after acceptance. That notice tells qualified beneficiaries that the trustee has accepted the trust, gives the trustee’s full name and address, and states that the fiduciary lawyer-client privilege applies to the trustee and any attorney the trustee employs.

Beyond the deadlines, the trustee must keep qualified beneficiaries reasonably informed about the trust and its administration. While a trust is still revocable, the duty to inform runs only to the settlor.

Early steps are practical. Gather the trust document, list the assets, and communicate in writing.

Can a beneficiary contest a trust?

Yes. A beneficiary or heir can challenge a trust on grounds Florida law recognizes. Those grounds include fraud, duress, mistake and undue influence. Under effect of fraud, duress, mistake or undue influence, a trust or any part procured by those means is void. The rest survives if it is valid for other reasons.

The challenger carries the burden. Under Fla. Stat. § 736.0207, the contestant must establish the grounds for invalidity. An action to contest a revocable trust cannot start until the trust becomes irrevocable by its terms or by the settlor’s death, though a guardian of the property of an incapacitated settlor may bring such an action; if all of a revocable trust has been revoked, an action to contest the revocation may not be commenced until after the settlor’s death.

Deadlines are strict. Under limitation on contesting a revocable trust, 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: (1) the time provided in chapter 95; or (2) 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. The first is the time under chapter 95. The second is six months after the trustee sends a copy of the trust and a notice with the trustee’s name, address and the time allowed to sue.

Readers asking how undue influence is shown can review the elements of undue influence. Timing questions should be reviewed promptly.

Is there a downside to having a trust?

A trust adds work, and the work does not end when the document is signed. Assets must be moved into the trust to have their intended effect. The trust also brings ongoing trustee duties and recordkeeping.

Liability is the other side of that work. Under remedies for breach of trust, a trustee who breaches a duty owed to a beneficiary can face court orders to pay or restore property. Family members who agree to serve may not expect that exposure.

A trust can also create disputes. Unclear terms or questions about the settlor’s intent can lead to contests. Clear drafting matters as much as having a trust at all.

Do trustees get paid?

Yes, but the trust terms and the statute decide how much. Under trustee compensation, if the trust does not specify the trustee’s compensation, the trustee is entitled to compensation that is reasonable under the circumstances.

If the trust does specify pay, the trustee is entitled to be compensated as specified. The court may allow more or less if the trustee’s duties are substantially different from those the settlor contemplated, or if the compensation specified by the terms of the trust would be unreasonably low or high.

The statute also covers attorneys who serve as trustees. An attorney who prepared or supervised the trust that names the attorney, or a related person, as trustee is not entitled to trustee compensation. The exceptions are when the person appointed is related to the settlor, or when the attorney makes specific disclosures to the settlor before the trust is signed and the settlor signs a separate written statement acknowledging those disclosures were made. This rule applies to trusts executed by a Florida resident on or after October 1, 2020, and to trusts amended by a Florida resident on or after that date if the amendment names the attorney who prepared or supervised it, or a person related to that attorney, as trustee.

What if the trustee is not doing the job?

A beneficiary can take action when a trustee breaches a duty. A violation of a duty owed to a beneficiary is a breach of trust. The court may then order the trustee to perform duties, account, or step aside, and it may reduce or deny compensation.

Information rights come first. Upon reasonable request, a qualified beneficiary is entitled to a complete copy of the trust instrument. The beneficiary may also request relevant information about trust assets, liabilities and administration. Under the same duty to inform and account, a trustee of an irrevocable trust must give accountings to each qualified beneficiary at least annually and on termination of the trust or on change of the trustee, unless the trustee is a family trust company, licensed family trust company, or foreign licensed family trust company, as defined in s. 662.111, whose trust terms may limit accounting as the statute allows.

A practical sequence helps. Put each request in writing, keep copies, and note the dates. Review the available remedies before taking any formal step. A written record makes the next conversation clearer for everyone.

Florida trust rules: how to read them for your situation

Florida’s rules fall into five groups: how a trust is created, what trustees must do, what beneficiaries can ask for, how long challenges last, and what remedies courts can order. Each rule ties to a statute. The same statute can apply differently from one trust to the next, because the trust terms and facts differ.

Quick answers

Talk through your trust question with Trust Counsel

If a parent’s trust has just become active, or you were named trustee and aren’t sure what the law asks, the questions can pile up fast. You don’t have to sort them out alone.

Leslie V. Marenco is the responsible lawyer for this page. The firm’s office is in Coral Gables. Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries.

Trust Counsel offers a free first consultation, confidential and with no obligation to continue. Call (305) 707-7126 or schedule online to talk through your trust’s timing and your options.