Florida Trusts can serve many purposes, but they all have one thing in common: Every trust must have someone named as its trustee. A trustee is someone who is appointed by the settlor (creator of the trust) to have the legal authority to hold and administer the property within a trust. A trust can either have one trustee, or multiple co-trustees. The trustee(s) must be appointed at the creation of the trust.
Who can serve as a trustee in Florida?
In Florida, anyone who is at least 18 years old, mentally competent, and is not the sole beneficiary of the trust can be assigned to be a trustee. Unlike a personal representative, it is not required a trustee be a resident of Florida.
What are a trustee’s responsibilities?
The trustee is mainly responsible for managing and distributing the assets in the trust. Most often, the trust documents will include the trustee’s duties and responsibilities. A trustee must fulfill their duties listed within the trust documents, along with their statutory duties that are listed in detail in Chapter 736 Part VIII of the Florida Trust Code. In addition to administering the trust, a few of the trustee’s main duties include:
- Duty of loyalty: The trustee must remain loyal to all beneficiaries. This means the trustee must manage the trust while acting only in the best interests of the beneficiaries.
- Duty of impartiality: The trustee is obligated to remain impartial when administering a trust with two or more beneficiaries. The trustee must realize the interests of each beneficiary.
- Duty to inform: The trustee must keep all beneficiaries reasonably informed of the trust and its administration. This includes keeping the beneficiaries informed of the assets and property within the trust and their distribution. This also includes keeping the beneficiaries aware of the trust’s gains and losses.
- The prudent investor: The trustee is expected to be a prudent investor, meaning they are expected to “invest and manage investment assets as a prudent investor would considering the purposes, terms, distribution requirements and other circumstances of the trust.”
- Duty to control and protect: The trustee must reasonably take control of the trust and protect the property within the trust.
- Duty to ascertain marketable title of trust real property: The trustee must obtain title insurance or proof of marketable title of real property in the trust, but only when the title is required for the sale of the real property.
What are the powers of a trustee?
In addition to a trustee’s many duties and responsibilities, they are also given multiple powers. The Florida Trust Code contains the general powers of a trustee in §736.0815. These include:
- All powers given to the trustee by the terms of the trust and;
- Unless limited by the terms of the trust:
- All powers over the trust property that an unmarried competent owner has over individually owned property.
- Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property.
- Any other powers conferred by the trust code.
The trustee is also given a long list of specific powers including:
- The power to buy or sell trust property, for cash or credit, at public or private sale
- The power to file taxes for the income earned by the trust
- The power to sign and deliver contracts or other instruments related to exercising the trustee’s powers
The complete list of specific powers are explained in detail in §736.0816 of the Florida Trust Code. An experienced Florida estate planning attorney can help you limit or expand the powers of a trustee to fit your needs and wishes.
If you are thinking of creating a trust, have been assigned as a trustee, or someone has approached you about being nominated as a trustee and would like further information on your duties, responsibilities, and powers, please contact us today.
Written by Alison Koukoulis and edited by Patrick D. Quarles, Esq.