Florida's New Trust Code is Retroactive
If you have a Living Trust or other trusts as forms of your Florida Estate Planning, you should have them reviewed by a Florida Estate Planning Lawyer.
Effective July 1, 2007 Florida Trust laws changed. (Florida Statute 736) It is important to understand that most of the code, unless otherwise provided for applies to all trusts whether created before or after the effective date.
In addition, most of the code is options with the exception of certain mandatory provisions. these include:
- Requirements for creation, including the formalities required for a valid trust.
- Public policy limitations dealing with issues like spendthrift clauses, penalty and exculpatory clauses)
- Procedural matters ( jurisdiction, venue, and other limitations)
- Court Powers ( power to modify or terminate the trust)
- Duties of the Trustee (to act in good faith and to account)
- Rights of third parties and bona fide purchasers
A very important change deals with Designated Representatives.
Under the new Florida Trust Code, you can now designate someone else to represent one or more beneficiaries. This allows you to keep the details and existence of the Florida Trust completely private from the beneficiaries. There are some issues that need to be understood:
1. A trustee may not represent a trust beneficiary.There are several drafting considerations that should be considered:
2. A beneficiary may serve as a designated representative only if the beneficiary isa) Designated by the settlor by name, or
b) Is one of a group of certain defined relatives of the settlor or his spouse.
- Appointment; resignation, removal, succession
- Compensation; reimbursement
- Indemnification
-Scope of representation authority- To act on beneficiary's behalf
- To receive notices, information, accountings, and reports
- To withhold information and "hide" trust's existence
In addition, every new trust should be analyzed to make sure the testamentary aspects of the Florida Revocable trust are valid, as they are now void unless the trust is executed with the formalities required for a will in Florida. This rule applies to revocable trusts created:
- After the effective date of the Code;
- By Florida Domicilliaries;
- Regardless of the place of execution; and
- Regardless of the location of the trust property.
if you have questions about an existing Florida Revocable Trust, or a new Florida Living trust you should speak with a Florida Living Trust Lawyer.
