TRUSTS AND ESTATES ATTORNEY

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Trusts and their Role in Florida Probate

Trusts serve various roles in both estate planning during your lifetime and post-death distribution schemes.  A properly drafted trust agreement can avoid the need for probate following your death, which provides additional privacy to the family.  An individual who creates a trust during their lifetime is referred to as the “settler” or “grantor” of the trust – this individual may also serve as trustee of that trust during their lifetime and appoint a Successor Trustee. When a loved one passes away, it may be time to assume the duty of Successor Trustee of a trust created by a relative or friend – this involves the area of Florida Trust Administration.

Trust Administration Explained

Florida Trust Administration is the legal process by which the assets of a Florida trust are distributed to the designated beneficiaries as set forth in the trust instrument. The Trustee is the individual who oversees this process - the trustee collects, manages, invests and ultimately distributes the property to the beneficiaries according to the trust’s terms and instructions. A trustee has various fiduciary and ethical duties proscribed by Florida law in order to protect the trust assets and the interests of the beneficiaries. While you may be appointed as trustee personally, Florida law also permits for a trustee to be a third-party entity, such as a financial institution. The appointment and acceptance of a Successor Trustee is often required following the trust creator’s death or resignation as trustee due to incapacity.  

The Trust Administration Process Can Be Complicated

Various trust forms exist, but all Florida trustees are bound by the laws of Florida (“Florida Trust Code”) regarding specific duties and obligations to the trust and its beneficiaries. Trust Administration in Florida can be complicated and carries a risk of legal liability if important steps and procedures are not followed or if the trustee takes action without proper diligence and care. The complexity of trust administration is based on the number and type of trust assets (both tangible and intangible assets such as personal property, real property, and bank accounts), the value of the assets, and if other estate tax planning or tax issues are involved.

Therefore, it is prudent for a Successor Trustee to contact a qualified trusts and estates attorney to assist with this important task at hand.  The Florida Probate Code specifically authorizes a trustee to retain expert legal counsel to assist, as well as tax and financial experts, throughout the administration process. The attorneys of Yelen & Yelen, P.A. can provide legal guidance to you as Successor Trustee throughout the trust administration process to ensure that you fulfill your duties and obligations as prescribed by the trust and Florida law. Our attorneys will help you determine exactly what to do and when to do so based on the trust and governing Florida law.

The Duties of a Successor Trustee

There are numerous steps that a Successor Trustee takes when assuming this role, including but not limited to the following:           

  • Review the trust instrument and determine what assets are presently held by the trust/titled in the name of the trust
  • Prepare an inventory of the trust assets
  • Send notice and communicate with the trust beneficiaries throughout the administration process
  • Pay trust bills, including taxes
  • Correspond and work with the Personal Representative of the decedent’s estate if any assets subject to probate administration
  • Communicate with various financial institutions regarding assets titled in the trust
  • Prepare a preliminary accounting of the trust assets (as well as periodic accountings as requested or instructed by the trust)
  • Maintain precise records of the trust assets

Trusts serve various roles in both estate planning during your lifetime and post-death distribution schemes.  A properly drafted trust agreement can avoid the need for probate following your death, which provides additional privacy to the family. 

As set forth above, trust administration can involve legal questions of law, asset management, contact with beneficiaries and financial institutions, dealing with potential estate and trust creditors, and tax-relates issues. The attorneys of Yelen & Yelen, P.A. can navigate you as trustee through the trust administration process.  Please contact our office at 305-445-3721 for more information.