{"id":2022,"date":"2026-10-19T03:47:15","date_gmt":"2026-10-19T03:47:15","guid":{"rendered":"https:\/\/trustcounsel.com\/resources\/professional-trustee-and-executor-services\/what-are-common-mistakes-people-make-with-trusts\/"},"modified":"2026-11-04T00:57:57","modified_gmt":"2026-11-04T00:57:57","slug":"what-are-common-mistakes-people-make-with-trusts","status":"publish","type":"page","link":"https:\/\/trustcounsel.com\/resources\/professional-trustee-and-executor-services\/what-are-common-mistakes-people-make-with-trusts\/","title":{"rendered":"Common Trust Mistakes in Florida: What to Check"},"content":{"rendered":"\n
<\/span>\"Trust
\n

Trusts & Estates | Coral Gables, Florida<\/p>

Common Trust Mistakes in Florida: What to Check Before You Rely on Your Plan<\/h1>

Trust Counsel, PL focuses on Florida trust, probate and estate planning matters. Leslie V. Marenco is the responsible lawyer for this page. Review the errors below and bring your questions to a free, confidential first consultation.<\/p>

Book a free strategy call<\/a><\/div>
Book a free strategy call<\/a><\/div><\/div>\n<\/div><\/div>\n\n\n

By Leslie V. Marenco \u00b7 Published October 18, 2026<\/p>\n\n

\n\n\n

What are common mistakes people make with trusts? In Florida, many trust problems trace back to a few errors. Assets never get moved into the trust. Account forms override it. Wording stays unclear. No backup trustee is named. These errors often stay hidden until the person who created the trust dies or can no longer manage it. This page explains each one, what it means for the people involved, and what to check.<\/p>\n

Why trust mistakes often surface only after a death or incapacity<\/h2>\n

Trust mistakes usually come to light after the person who created the trust dies or can no longer act. Many readers first ask what are common mistakes people make with trusts after a parent passes away or becomes ill. The settlor (the person who created the trust) may never notice a gap. Nothing seems wrong while he or she is alive and in charge.<\/p>\n

When a successor trustee (the person who takes over) opens the file, the gaps show up. The people who made the choices may be gone or unable to explain them.<\/p>\n

Florida’s trust law covers both revocable and irrevocable trusts. A settlor may revoke or amend a trust unless its terms expressly say it is irrevocable, though this rule does not apply to a trust created under an instrument signed before the Florida Trust Code took effect \u00a7 736.0602<\/a>. An irrevocable trust is built to be harder to change. The mistakes below matter for both. The fix may differ, but the risk stays.<\/p>\n

For an overview of the practice area, see professional trustee services<\/a>.<\/p>\n\n

\n

Not sure what your next step is?<\/h3>

Talk it through with Trust Counsel, PL — the first consultation is free, confidential, and carries no obligation.<\/p>

Get a free consultation<\/a><\/div>
Get a free consultation<\/a><\/div><\/div>\n<\/div>\n\n
\"A<\/figure>\n

Assuming a trust controls assets that were never moved into it<\/h2>\n

A trust controls only the property titled in its name or formally assigned to it. Signing a trust document does not, by itself, move a house, bank account, or brokerage account into it.<\/p>\n

Florida recognizes several ways to create a trust. A trust may be created by transferring property to a trustee during the settlor’s lifetime or by will or other disposition taking effect at death. It may also be created when an owner declares that he or she holds identifiable property as trustee \u00a7 736.0401<\/a>. Florida law recognizes three ways a trust may be created.<\/p>\n

Assets left outside the trust can still lead to probate. ACTEC’s probate explainer<\/a> notes that probate administration can require court involvement when disputes arise. That means extra time and paperwork the trust was meant to avoid.<\/p>\n

Check each deed and compare its vesting name with the trust. Check each bank and brokerage account’s title. Compare every assignment form against the trust’s asset list. A missing title is a problem to fix, not a detail to ignore.<\/p>\n

Overlooking beneficiary designations on retirement accounts and life insurance<\/h2>\n

Retirement accounts and life insurance policies often pass under the beneficiary form on file with the provider. That form can point somewhere different from the trust.<\/p>\n

Here is how the mismatch plays out. A trust may divide the estate evenly among the children. A large retirement account, however, still names a former spouse because the form was never updated. The trust looks right on paper, yet a large share goes to someone the settlor no longer intended to benefit. The other beneficiaries may then face a dispute they never expected.<\/p>\n

Review beneficiary forms when you review the trust. Ask the provider for a copy of each form on file, and keep those copies with the trust. Recheck after a marriage, divorce, birth, death, or sale of a business, so the forms and the trust point the same way.<\/p>\n

Using outdated or unclear trust language<\/h2>\n

A trust written before a marriage, divorce, birth, death, or business sale may no longer match what the settlor wants. Old wording can also be unclear.<\/p>\n

Florida’s rule on marriage and divorce is specific. Neither a later marriage, a birth, nor an adoption of descendants revokes a revocable trust \u00a7 736.1105<\/a>. But a trust provision that affects the settlor’s spouse is void when the marriage is dissolved, unless an exception applies. That rule applies to revocable trusts of decedents who die on or after June 29, 2021 \u00a7 736.1105<\/a>. Exceptions include a provision the settlor signed after the divorce, a provision where there is a specific intention to the contrary stated in the revocable trust, and a dissolution judgment that expressly provides otherwise.<\/p>\n

Vague descriptions of beneficiaries, unclear ages for distributions, and conflicting clauses lead to arguments about meaning. Upon application of a settlor or any interested person, a court may reform a trust, even if it is unambiguous, when clear and convincing evidence proves that a mistake of fact or law affected both the settlor’s intent and the trust’s terms \u00a7 736.0415<\/a>. That is a court process with a demanding standard, not a quick fix.<\/p>\n

For a revocable trust, follow the amendment method the trust provides. The statute allows substantial compliance with that method \u00a7 736.0602<\/a>.<\/p>\n

Naming a successor trustee without a backup plan<\/h2>\n

Florida law sets the order for filling that gap.<\/p>\n

A vacancy occurs when a designated trustee declines, cannot be identified or does not exist, resigns, is disqualified or removed, dies, or is adjudicated incapacitated \u00a7 736.0704<\/a>. If no trustee remains, the vacancy must be filled. For a noncharitable trust, the order is a successor named in the trust first. Next comes a person appointed by unanimous agreement of the qualified beneficiaries (the people with the main rights to the trust). Last comes a person appointed by the court \u00a7 736.0704<\/a>.<\/p>\n

A common setup names one family member with no alternate. If that person dies, declines, or cannot serve, the court may have to step in. A named backup with clear powers and a written list of duties gives the next trustee a clear starting point.<\/p>\n

The firm itself does not serve as trustee or personal representative (often called an executor). Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries.<\/p>\n

Treating a trust as a do-it-yourself project without Florida requirements<\/h2>\n

A trust drafted from a generic form can miss Florida’s requirements, so have it checked before you sign. Under the Florida Trust Code<\/a>, except as otherwise provided in the terms of the trust, the code governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.<\/p>\n

A trust is created only if the settlor has capacity and shows intent to create it. It also needs a definite beneficiary or a listed exception, trustee duties to perform, and a setup where the same person is not both sole trustee and sole beneficiary \u00a7 736.0402<\/a>.<\/p>\n

The code governs trustee duties and beneficiary rights, except as the trust’s terms provide. The terms prevail over most of the code’s rules, but several listed provisions cannot be overridden \u00a7 736.0105<\/a>. A generic form can therefore leave key choices to default rules without anyone noticing.<\/p>\n

Common gaps include no incapacity provision, no instructions on successor trustee powers, and no plan for a beneficiary who is a minor or has special needs. Check the draft against these points before signing. Move assets in only after the document is final.<\/p>\n\n

\n

Not sure what your next step is?<\/h3>

Talk it through with Trust Counsel, PL — the first consultation is free, confidential, and carries no obligation.<\/p>

Get a free consultation<\/a><\/div>
Get a free consultation<\/a><\/div><\/div>\n<\/div>\n

Failing to keep records and report to beneficiaries<\/h2>\n

Under Florida law, the trustee must keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration, but while a trust is revocable, the trustee’s duties under this section extend only to the settlor \u00a7 736.0813<\/a>. That duty is written into the statute.<\/p>\n

The statute also sets specific steps. In the situations it lists, the trustee must give notice within 60 days. Notice of acceptance covers acceptance of the trust, the trustee’s full name and address, and that the fiduciary lawyer-client privilege in s. 90.5021 applies to the trustee and any attorney employed by the trustee. For an irrevocable trust, notice within 60 days also covers the trust\u2019s existence, the identity of the settlor or settlors, the right to request a copy of the trust instrument, and the right to accountings under this section, plus the same privilege statement. On reasonable request, the trustee must provide a complete copy of the trust instrument \u00a7 736.0813<\/a>. An irrevocable trust’s accounting is due at least once a year and when the trust ends or the trustee changes, unless a family trust company, licensed family trust company, or foreign licensed family trust company, as defined in s. 662.111, is the trustee, in which case the terms of the trust may permit accounting only at the termination of the trust, upon removal, resignation, or other event resulting in a trustee ceasing to serve as a trustee, or upon demand of a qualified beneficiary or the representative of a qualified beneficiary. A qualified beneficiary may waive the annual accounting, but only in writing \u00a7 736.0813<\/a>.<\/p>\n

A trustee must keep clear, distinct, and accurate records \u00a7 736.0810<\/a>. An accounting must show all cash and property transactions, including compensation paid to the trustee and the trustee’s agents \u00a7 736.08135<\/a>, unless a family trust company, licensed family trust company, or foreign licensed family trust company elects to provide a financial statement instead.<\/p>\n

Missing statements, undocumented distributions, and unexplained expenses lead to disputes that can end in trust litigation. Keep statements, receipts, distribution records, tax filings, and written communications with beneficiaries in one place.<\/p>\n

Mixing trust money with personal funds and delaying decisions<\/h2>\n

Mixing trust money with personal funds, or delaying decisions, can create claims a trustee must later explain.<\/p>\n

A trustee must keep trust property separate from the trustee’s own property \u00a7 736.0810<\/a>. A trustee must also administer the trust solely in the interests of the beneficiaries \u00a7 736.0802<\/a>. A transaction involving the investment or management of trust property can be voidable by an affected beneficiary when a conflict exists between the trustee’s personal and fiduciary interests, unless an exception applies \u00a7 736.0802<\/a>. Paying a personal bill from a trust account is an easy mistake to make and a hard one to explain.<\/p>\n

Delay causes its own problems. Unpaid taxes, lapsed insurance on trust property, and unanswered beneficiary requests can each become something someone must later explain.<\/p>\n

For a trustee who has not provided an accounting, see trustee refuses to give accounting in Florida<\/a>. For readers weighing professional trustee services, see professional trustee services in Florida.<\/p>\n

Talking with a Florida trusts and estates attorney about your situation<\/h2>\n

If one of these problems fits your situation, a trusts attorney can help you sort out what applies. Readers who ask what are common mistakes people make with trusts often already have a specific problem in front of them.<\/p>\n

You may have found a trust in a parent’s papers, with no deed for the house it was meant to hold. You may have received a copy after a sibling’s death and wondered why the trustee has gone quiet. You may be rethinking a trust after a divorce or the sale of a business. Each of these moments is stressful.<\/p>\n

The answer depends on the facts: the trust terms, how each asset is titled, and what has already happened. Trust Counsel, PL focuses its practice on probate and trust matters in Florida. Its only office is in Coral Gables. We serve clients in Aventura, and the professional trustee services in Aventura page covers that area.<\/p>\n

The initial consultation is free, confidential, and without obligation to continue. To take the next step, request a free consultation<\/a> or call (305) 707-7126.<\/p>\n\n

\"A<\/figure>\n

Frequently Asked Questions<\/h2>
What is the most common mistake people make with a trust?<\/summary>

Many people sign a trust but never transfer their bank accounts, real estate, or investment accounts into its name. Assets left outside the trust may still have to go through probate.<\/p><\/details>

Can a trust become outdated?<\/summary>

Yes. Marriage, divorce, a new child, a move to another state, or a change in the trustee can all make a trust’s terms no longer match the person’s wishes, so it should be reviewed from time to time.<\/p><\/details>

Why should a trust name a backup trustee?<\/summary>

If the named trustee dies, becomes unable to serve, or declines the role, the trust may have no one to manage its assets without a court’s help. Naming a successor trustee helps keep the trust running smoothly.<\/p><\/details>

Do beneficiary designations override what a trust says?<\/summary>

Often, yes. Retirement accounts and life insurance usually pass to the person named on the account’s beneficiary form, not under the trust, so those forms should match the overall plan. Trust Counsel, PL offers a free, confidential initial consultation with no obligation to continue, and you can call (305) 707-7126 to schedule one.<\/p><\/details><\/article>\n