By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

In Florida, qualified beneficiaries of a trust have a legal right to receive an accounting from the trustee. This accounting is a detailed report of the trust’s financial activities, including income, expenses, distributions, and the status of trust assets. It ensures transparency and helps beneficiaries verify that the trustee is managing the trust according to Florida law.

Note: Unless you waive your right to an accounting, the Trustee has a duty to provide an accounting to all qualified beneficiaries. This accounting must comply with F.S. 736.0813. Among other things, the trustee must disclose his or her fees and costs charged to the trust.

What is Trust Accounting?

A trust accounting typically includes:

• Income: Dividends, interest, or rent generated by the trust.
• Expenditures: Distributions to beneficiaries, trustee fees, CPA fees, and administrative costs.
• Investments: Records of any asset purchases or sales.
• Balances: Beginning and ending balances for the accounting period.

This report gives beneficiaries critical insight into how the trustee is managing the trust.

Florida Law on Beneficiary Rights

Under Florida Statutes Section 736.1008, qualified beneficiaries have the right to request an accounting at any time. Trustees must provide this accounting within a reasonable period upon request.

What Happens if a Trustee Fails to Provide an Accounting?

If a trustee does not provide an accounting, beneficiaries can:

• Request one in writing.
• Petition the court to compel the trustee to provide the accounting.
• Seek the removal of the trustee.

Why is Trust Accounting Important?

An accounting ensures that:

• The trust is being managed properly and in line with the grantor’s intent.
• Beneficiaries can verify that distributions and expenses are legitimate.
• Potential issues, such as mismanagement, can be addressed early.
• The trustee’s fees and costs are reasonable.

Conclusion

A qualified beneficiary’s right to trust accounting is a key protection under Florida law, ensuring transparency and accountability. If you are a qualified beneficiary and believe the trustee is not fulfilling their duties, consult an estate planning attorney to understand your options. If you are a trustee, do not try to administer the trust without an experienced Miami trust attorney. For more information about Trust Administration, see our guide: Practical Tips For The Florida Trustee.

For more information, contact Phil Rarick, Weston Trust Attorney, at info@raricklaw.com.

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Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney who is experienced in Florida trust law. Your receipt of information from this website, blog, or Miami trust attorney does not create an attorney-client relationship and the legal privileges inherent therein.

By Phil Rarick, Weston Trust Attorney, and Jasmine Benitez, Legal Assistant

The answer is yes – under certain circumstances, a trustee can be removed from their duties. A trustee has a high fiduciary responsibility to act in the best interest of the qualified beneficiaries, but if they fail to do so, there are legal grounds for removal.

This blog will walk you through the typical legal grounds for removing a trustee, the process involved, and what steps you can take if you believe a trustee is not fulfilling their responsibilities.

Legal Grounds for Removing a Trustee in Florida

A trustee in Florida can be removed for a variety of reasons, typically tied to their failure to act in accordance with the trust’s terms or their fiduciary duties. Common grounds for trustee removal include:

– Breach of Fiduciary Duty

A trustee has a legal obligation to act in the best interests of the beneficiaries, and any violation of this duty is grounds for removal.

• Self-dealing: The trustee uses trust assets for their own benefit.
• Mismanagement of assets: Failing to invest or manage trust property properly, or making risky, imprudent investments. A trustee must follow the prudent investor rule, which can best be summarized as follows: the trustee should ensure that trust investments stay ahead of inflation but are not in high-risk investments such as cryptocurrencies. Unless otherwise stated in the trust, the investments should be broadly diversified. And importantly, the Trustee assets must produce income for the beneficiaries. See 5 Warning Signs That A Trust Is Not Performing.
• Failure to make required distributions: Not following the trust’s instructions on when and how to distribute assets to beneficiaries.

– Lack of Transparency and Failure to Disclose Information

Trustees are required to provide regular, accurate, and complete information about the trust to the beneficiaries. If a trustee fails to disclose relevant information or is not transparent about the trust’s activities, this could lead to their removal.

• Not providing annual financial statements
• Withholding or failing to disclose the trust document
• Not informing beneficiaries about important trust decisions.

See 5 Key Rights of a Florida Trust Beneficiary.

– Conflict of Interest

A trustee must act impartially and without personal bias. If a trustee has a conflict of interest, such as standing to benefit personally from a decision, they can be removed. This could include situations where the trustee is in a personal dispute with a beneficiary or has a financial interest that conflicts with their duties.

The Process for Removing a Trustee in Florida

If you believe a trustee should be removed, the process typically involves legal action, either through the terms of the trust or by petitioning the court. Here’s a breakdown of the steps involved:

1. Review the Trust Document

Start by reviewing the trust document. Some trusts include provisions that allow for the removal and replacement of a trustee, either by the beneficiaries, a co-trustee, or a third party (such as a trust protector or advisor). If the trust includes such provisions, the process for removal may be relatively straightforward.

2. Petitioning the Court for Removal

If the trust document doesn’t specify how a trustee can be removed or if there’s no agreement among the beneficiaries, the next step is to petition the court. The petition is typically filed in the probate court or circuit court that has jurisdiction over the trust.

3. Court Decision

If the court finds that the trustee has violated their fiduciary duties, breached the terms of the trust, or otherwise failed to fulfill their responsibilities, it can order their removal. The court may also appoint a successor trustee, either from a list of qualified individuals provided by the trust or based on its own determination of who would be the best fit to administer the trust.

4. Appointment of a Successor Trustee

If the trustee is removed, a new trustee will need to be appointed. If the trust document specifies a successor, they can take over immediately. If not, the court will appoint someone to act as the new trustee.

Key Takeaways:

1. Yes, a trustee can be removed in Florida for reasons such as breach of fiduciary duty, lack of transparency, failure to disclose trust information, and conflicts of interest.
2. The process of removing a trustee generally involves petitioning the court, unless the trust document provides a mechanism for removal.
3. If you are a beneficiary, communicate your concerns, gather evidence, and consult with an experienced Miami trust planning attorney to determine the best course of action.
4. After removal, a successor trustee must be appointed to ensure that the trust is administered properly and that the beneficiaries’ interests are protected.

Trustees play a critical role in managing trusts, and when they fail to fulfill their duties, it’s essential to take prompt action to protect the trust and its beneficiaries. If you’re facing issues with a trustee in Florida, working with an experienced Miami trust attorney can help ensure that the trust is properly managed and that your interests are defended.

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Consult with a Miami Trust Attorney

Consulting with an experienced estate planning attorney is crucial. An attorney can help you assess whether the trustee’s actions—or lack of action—justify removal, and they can guide you through the process of filing a petition with the court. They can also help you understand your rights as a beneficiary and what you can do to protect your interests.

For more information, contact Phil Rarick, Weston Trust Attorney, at info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney who is experienced in Florida trust law. Your receipt of information from this website, blog, or Miami trust attorney does not create an attorney-client relationship and the legal privileges inherent therein.

By Phil Rarick, Weston Trust Attorney

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Every family needs instructions in the event of disability or death. A Family Trust, also known as a Living Trust, is your detailed, legally binding instructions to care for you and your family in the event of mental incapacity or death. A trust can accomplish all the goals of a will and in addition avoid probate and guardianship when properly funded. A will must go through a bureaucratic, expensive and time-consuming legal process called probate where the court may intervene in your personal or business affairs. This is why the Revocable Family Trust has become the preferred plan of choice over a will for most people; it is almost certainly the best plan if you have children.

Understanding a Family Trust – a/k/a Living Trust

There are three primary roles in a Family Trust: the grantor, trustee, and beneficiary.

The grantor is the person who makes the trust; the Trustee is the person who is legally found to follow the trust instructions exactly as stated in the Trust. And the beneficiary? Every dime of the trust must go to the beneficiaries. Initially, you can be the Grantor, Trustee, and, along with your spouse or children, the Beneficiaries.

Most Family Trusts are revocable because the grantor wants to retain 100% control over the trust instructions and change them whenever he or she wants at any time during their lifetime.   Control and flexibility are two key goals in Trusts.  The Trust has a major advantage over the mortal person: it does not become incapacitated, and it does not end at death.  It continues to provide for your family as long as needed to help protect the lifestyle of your family.   If you have children, it can help ensure they get a high-quality education and that the funds cannot be claimed by a spouse or creditor of the child.

Key Benefits of a Revocable Family Trust

1. Avoiding Guardianship. Guardianship is a bureaucratic legal process where the court supervises the person and/or property of a person.  The court selects the Guardian.    In my 30 years of practice as a Miami Trust attorney, I cannot recall anyone who wanted to allow a court to intervene in their personal or business affairs; almost all persons want a family member to take charge if they have a temporary or permanent incapacity.  A trust can help you keep legal control in the family.

2. Avoiding Probate. One of the biggest advantages of a family trust is that it allows assets to bypass the probate process provided the Trust is properly funded. Probate is the court-supervised process of distributing a deceased person’s estate, which can be time-consuming, costly, and public. By transferring assets to a family trust, those assets can be distributed directly to the beneficiaries without the need for probate, saving time and money.

3. Protection for Minor Children and Young Adults. The Trust can help ensure that funds going to minor or adult children are used in a smart way.    For minor children, a trust can help ensure that the minor child does not waste the funds by getting a big lump sum payment or that the funds could be claimed by creditors of the child after age 18.  Rather, the trust can help ensure the child receives a first-rate college and graduate education. For adult children who may marry or are already married, the trust can provide protections so the adult child’s spouse cannot claim funds designated for the child.

Conclusion Whether you have $100,000 or over $1 million you should first consider a Family Trust or a Living Trust over a Will for your estate plan as a Trust that is properly funded will help avoid the bureaucratic legal processes known as guardianship and probate. Plus, the trust can provide strong protections for minor and adult children to make sure your hard-earned money is used in a smart way for your children’s future.

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For more information about the Family Trust or Living Trust see our short guide, Understanding Living Trusts by Miami Trust attorney Phil Rarick or contact our office at (305) 709-2858 for a consultation.

Notice: This article is intended for informational purposes only. It is important you consult with an experienced Miami Trust attorney. For more information contact attorney Phil Rarick at  (305) 709-2858 or by email prarick@raricklaw.com.

3 CREATIVE WAYS FAMILY LAW ATTORNEYS CAN USE TRUSTS

By: Phillip B. Rarick, Miami Trust Attorney, and Maria C. Gonzalez, B.C.C., Family Law Attorney

The following note is a brief review of three popular trusts that can help ensure compliance with future financial obligations set forth in a Pre-Nuptial Agreement or Marital Settlement Agreement.

Hypothetical #1. Husband and Wife plan to marry and are expecting their first child in 7 months. Husband has a net worth of $10 million; Wife $200,000. In addition to all support needs for their child, Wife wants assurance that she will have an independent source of funds during the marriage, and sufficient funds if the marriage is dissolved to maintain the same quality of lifestyle she enjoyed during the marriage. Husband wants assurance that funds set aside for Wife are not used for a lavish lifestyle during the marriage; if Wife dies such funds would continue to be wisely managed for their children.

Solution: Irrevocable Spousal Lifetime Access Trust. The Pre-Nup requires establishment of an irrevocable Trust with a third party as Trustee for the sole benefit of Wife for her lifetime. In addition to any child support obligations, Husband will commit to fund $1 million into an Irrevocable Spousal Lifetime Access Trust. The Pre-Nup requires the Husband to fund the Trust with $1 million cash and the Trustee is required to purchase a $5 million term life insurance policy with the Trust as the beneficiary. The “Triggering Event” is defined as the annulment, dissolution of marriage, divorce proceeding or similar proceeding between the Husband and Wife. Wife has liberal rights to all income produced by the Trust; therefore prior to the Triggering Event, the Trustee can distribute such amounts of income as the Wife requests for her health, education, maintenance, support, and reasonable comfort. After the Triggering Event, the Wife can direct the Trust to distribute all income and principal as she wishes provided sufficient funds remain to fund the Life Policy. Note: This type of Trust has excellent asset protection features for the funds in the Trust.

Hypothetical #2: Both Husband and Wife want to ensure that their children will receive not just a high-quality private education through high school, but also have no excuse not to secure a quality post-high school degree, including a graduate degree.

Solution: Children’s Educational Trust. The parties commit to paying $100 per child per month into an Irrevocable Children’s Educational Trust. The Trustee is required to invest the funds in the Florida Prepaid College Fund, Florida 529 Savings Plan, or similar 529 plan. Individuals can contribute as much as $90,000 to a 529 plan in 2024 if they treat the contribution as spread over a 5-year period. Such plans grow tax free and avoid the high tax rate of Trusts. These plans provide excellent income tax reduction planning plus help ensure a high quality education for the children.

Hypothetical #3: One or both parties is not a good money manager which has led to financial stress that is a primary cause for the couple’s divorce. Both agree for the need to purchase or continue payment offer existing life insurance policies upon death of the spouse who has been the main provider.

Solution: Children’s Safe Harbor Trust. The MSA provides for the establishment of an irrevocable Trust to own the policies and pay the premiums. See post Children’s Safe Harbor Trust. The parties agree to yearly funding to the Trust to cover the premium payments. The sole beneficiary of the Trusts are the children; distribution standards are health, education, support, and best interests of the child at the sole discretion of the Trustee. Note: The trustee’s discretion is absolute to protect the children from creditor claims or claims of their spouses if they marry.

Notice: This article is intended for informational purposes only. It is important you consult with an experienced Miami Trust attorney. For more information contact attorney Phil Rarick at  (305) 709-2858 or by email prarick@raricklaw.com.

More Resources:

• Practical Tips for Administration of a Florida Trust
• Florida Trustee Checklist

By: Phil Rarick, Miami Trust Attorney You will miss this deadline if you do not read carefully – and you may need a magnifying glass to find it. Around the last weeks of August, you should have received in the mail a “Notice of Proposed Property Taxes” or “TRIM Notice” from your county property tax appraiser. This is NOT a bill but a notice. Buried at the bottom of your Notice in small print is an important deadline for appealing your tax assessment.

Clearly, the county does not want to encourage you to appeal your property taxes, exemptions, or right to claim homestead for your primary residence that you live in. Note these deadlines:

• Miami-Dade: The deadline for you is at the bottom of your Notice according to the Property Appraiser’s website. This is the deadline that is binding on you. The deadline on the TRIM notice I received for the property in Miami Lakes said September 17, 2024. Note, however, that your deadline is the one listed on the notice that you received. For more information click: Miami-Dade Trim Notice.
• Broward: September 18, 2024. For more information click: Broward Trim Notice.

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Should You Appeal? If your taxes have significantly increased, you may wish to consider an appeal of your assessment. Approximately 40% of appellants are able to successfully challenge their property tax assessments. The cost to appeal is only $15.

What To Do: If your property taxes have significantly increased, we recommend you have the valuation screened by a professional who is experienced in challenging assessments before the Value Adjustment Board. Many professional appraisers will take your case on a contingency fee; you simply need to pay the $15 filing fee. You need to make your own independent assessment of a professional to do this work.

Note: Our Firm does not do this appeal work and makes no recommendations of professionals who do; this notice is strictly a public service reminder courtesy of the Firm.

Homestead: Make sure you check your TRIM notice for your primary residence to confirm that you are receiving the Homestead tax exemption. Miami-Dade Appraiser cautions: Do Not Jeopardize Your Homestead Exemption by renting your homestead. When renting your home periodically for more than 30 days in two consecutive years, you will be ineligible for the Homestead Exemption or the SOH Cap.

Remember: It is not necessary to have all your evidence before you file. If in doubt, pay the $15 and file your appeal. The most important goal at this point is to get your appeal filed on a timely basis if you want to appeal. After the deadline, it is exceptionally difficult to file.

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Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney or Miami Trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Florida Successor Trustee Checklist

By Phillip B. Rarick, Miami Trust Attorney

You are named the successor trustee and the trustmaker has just died. No doubt these are difficult times, but thankfully there are many resources to help. The following is a checklist of initial important tasks to help guide you after the funeral or memorial service.

Note: You are not required to accept the trustee duties. However, if you begin to act as successor trustee you will likely be held responsible for all acts as the trustee to the beneficiaries and the IRS. Therefore, do not begin to take any actions as Trustee before you know what your duties are. Consult a Miami trust attorney and see our 12 Point Summary of Florida Successor Trustee Duties. First Priority Action Items

____ 1. Sign Acceptance of Trustee Duties and Affidavit of Trust

____ 2. Take possession of all legal records including:

• Original trust
• Original will (usually called a pour-over will if decedent had trust)

____ 3. Take possession of all financial records such as:

• Inventory of assets

Note: This may be on paper or on decedent’s computer.

• Passwords to computer, internet media, or social media
• Checkbooks
• Credit cards
• Statements from all banks or financial companies

____ 4. Take possession of all keys or codes to:

• All vehicles or boats
• Safe or bank safe deposit box

Note: Do not allow entry to Safe Deposit Box without a witness and prior discussion of arrangements with a Miami trust attorney. Remember:

• House and other real estate or rental properties
• Storage room

____ 5. Lock and secure all real estate and household contents

____ 6. Engage an experienced Florida trust administration attorney

____ 7. Engage CPA or accountant and determine deadlines for filing tax returns

____ 8. Contact decedent’s Financial Advisor

____ 9. Order minimum of 10 death certificates (these can usually be obtained through the funeral home) and collect documents on Document Checklist.

Click Here for: Document Checklist

_____ 10. Calendar important dates: such as deadline for filing decedent’s final 1040 tax return and 1041 tax return for the trust.

Note: As Trustee, you are liable to the IRS for all trust tax matters.

_____ 11. Buy a notebook and keep track of your time and work on behalf of the trust:

Note: Few beneficiaries will appreciate the time and extensive work of the trustee. To be fully compensated for your time, you likely will need to account for all your time incurred as trustee.

Second Priority Action Items

_____ 12. Complete Master Information List: This is an inventory of all the decedent’s assets and most importantly how they are titled and what, if any, beneficiary designation.

• Contact info@raricklaw.com for List.

____ 13. Open Trust Checking Account with bank

____ 14. Set up Quicken/QuickBooks or similar accounting program

Note: As Trustee you must account for all funds received and all funds paid out. If you are not adept and diligent at accounting, hire a bookkeeper or accountant. Remember as Trustee you will need to provide a detailed accounting to all trust beneficiaries for all trust income and expenses.

____ 15. File Notice of Trust with the Clerk of Court

_____ 16. Determine names and addresses of all qualified beneficiaries with assistance of Trust attorney

_____ 17. Within 60 days of accepting Trustee duties, send Notice of Trust to all qualified beneficiaries; this notice must comply with Florida law

____ 18. Deposit Will with the Clerk of Court

____ 19. Advise Post office to forward mail

____ 20. Cancel utilities, subscriptions

____ 21. Contact homeowner’s insurance and keep insurance current

____ 22. Review insurance for all rental properties and keep payments current

____ 23. If homeowner association, contact and keep payments current

____ 24. Inventory Safe Deposit Box with at least one witness after first consulting with trust attorney

____ 25. Search records for potential creditors

Note: Do not pay creditors until you have ascertained their legal validity and priority. As trustee you have the duty to contest creditor claims that are not valid and pay claims according to their priority. A spouse is typically not liable for the debts of the deceased spouse.

____ 26. Keep current payments to legally valid secured creditors.

____ 27. Determine if any Employee Benefits

____ 28. Contact health care providers, such as doctors, hospitals, clinics and determine if they have accepted Medicare assignment for their services. If they have, then they have agreed to accept Medicare and any other insurance payments for their services. Therefore there should be no reason for them to file a claim in the estate for any unpaid portion of their statement. If we have a list of the Medicare providers, we will prepare objections to any claims they file against the estate.

____ 29. Social Security: If the decedent was receiving Social Security, contact (a) the Social Security Administration to inform them of the decedent’s death; (b) the bank where the social security check is being deposited directly into to inform them of the decedent’s death. The Social Security checks are issued at the first of the month and they are in payment for the previous month. The decedent must have lived the entire month to be entitled to the Social Security check. For example, if the decedent died August 15, and the Social Security check was automatically deposited on September 3, the decedent is not entitled to the September 3 check or any checks thereafter. You must contact the bank and request that they return the check to Social Security. Often the bank does this automatically as a service to customers. If the check is not returned, the Social Security Administration will take steps to collect the check(s).

____ 30. Make a claim for Social Security death benefit if (a) decedent has enough hours worked during his or her lifetime; and is (b) survived by a spouse or dependent child. For additional information contact Social Security at 800-772-1213.

____ 31. Determine if any claims for life insurance or veteran death benefits.

This is a short list of initial tasks for a person who accepts the duties as Successor Trustee. It is not a complete list of tasks. The trustee will only be able to determine all tasks after carefully reviewing all trust instructions with a Miami trust attorney. Attorneys at Rarick Trusts & Wills Law, P.A. have helped many family members navigate these tasks as the Trustee, Co-Trustee or Personal Representative of the Estate. We are ready to help you. Contact us at (305) 709-2858 or email to info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami trust attorney does not create an attorney-client relationship and the legal privileges inherent therein.

Its a New Year and time to file your 2026 Annual Report if you own a Florida LLC (limited liability company), corporation, or partnership. The deadline is May 1, 2026. The state will charge you a $400 late fee if you miss this deadline.

The official Florida web site is www.sunbiz.org. This site has “Consumer Notices” to alert you to bogus web sites that try to scam persons who file these reports.

How To Safely File

The legitimate email notice will state that it is from the Florida Department of State; Subject: Official 2025 Annual Report Notice for: [Name of your corporate entity].

This notice will give you instructions on how to file on line at www.sunbiz.org where you will find a banner that states, “’Florida Department of State, Division of Corporations”.

Florida Department of State fees for the annual registration of corporate entities are:

• Limited liability company: $138.75
• Corporation: $150.00
• Limited Partnership: $500

Watch For These 3 Scams Scam #1: F.C.F.S. – Florida Corporate Filing Services. This outfit sends you a notice in the mail that looks like they are official certificates from the State of Florida with a Tallahassee address and will request about $47 for a Certificate of Status. In another scam they may request $125 for filing corporate minutes. People are tricked into thinking such documents are required by the State – they are not. Scam #2: Corporate Filing Services Center. This group requests about $68 for a certificate of status – again, not required by the State. Scam #3: C.F.S – Certificate Filing Service. This gang has exceptionally impressive and official looking paper that resembles the quality paper of a birth certificate. They will request about $49 for a certificate of status. This is NOT required by the State. Note: The Department of Agriculture and Consumer Services (DACS) now has the statutory duty and responsibility to investigate potential scams and fine violators under the new “Government Impostor and Deceptive Advertisement Act” (GIDAA). For more information, see section 817.417, F.S. or visit the FDACS’s Division of Consumer Services. Good Time To Review Your Corporate Records – and Update Them

This is a good time to conduct an annual review of your LLC, corporation or limited partnership.

We have prepared a 10 Point Checklist to assist you. To get this list click here: 10 Point Checklist For Florida Corporate Entities

It may be advisable to make an appointment with our office to ensure your corporate minutes are properly prepared, are up to date, and accurately reflect key issues, such as who are the controlling officers, who are the owners, and what shares or units does each owner hold.

To schedule an appointment, call our office at (305) 709-2858 or email info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami asset protection attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

By Phillip B. Rarick, Miami Trust Attorney, and Hannah S. Rarick, J.D. Candidate

Effective as of last year July 1, 2021, Florida is now 1 of 15 states to enact the Uniform Directed Trust Act (FUDTA), F.S. §§736.1401 to .1416, that allows a third party other than the Trustee to take over some part of the trust administration – such as supervision of a small family business. This third party is called a Trust Director (or directing Trustee) in the new statute; but is also commonly referred to as a Trust Advisor under prior law or Trust Protector in other jurisdictions.

Here are Five key points in the new Directed Trust Act: 1. Expanded Trustee Protections. The focus of the new act is to expand the guidelines and protections for Trustees who are “directed” to take or not take certain actions during the trust administration. F.S. 736.1409. The person who can give such directions is now referred to as either (a) Trust Director (F.S. §736.1406) or (b) a “directing Trustee” (F.S. §736.1412).

Note: I am going to use “Trust Director” as I find “directing Trustee” confusing. The act anticipates that the Trustee will not

also serve as Trust Director otherwise why then do you need a Trust Director? However, the new law does not prohibit a Trustee from also serving as a Trust Director.

2. Powers of the Trust Director. These powers are very broad and include power over investment, management, distribution of trust property, amend trust, and terminate Trust. Powers that are excluded include powers of appointment and the powers to remove a Trustee or Trust director.

3. Clarification of Trust Director Standard of Care. Before FUDTA, it was not clearly defined what fiduciary duty was imposed on the Director. Now, the new law states the Trust Director’s minimum duty is to act in good faith and in accordance with the beneficiaries’ interest, which is parallel to a Trustee. This duty is applicable to any person who holds the role of directing a trustee, despite the title of the position.

4. Trust Director Can Now Issue a 6-month limitation notice. A 6-month limitation notice can now be issued by both the Trustee and Trust Director. A Trust Director can issue 6-month limitations notice per F.S. 736.1008 that can effectively cut off claims by a beneficiary of the acts of the Trust Director unless an action for breach of trust based on matters disclosed in a trust accounting or other written report is commenced within 6 months after receipt from the trustee or a trust director of the limitation notice.

5. Effective date: July 1, 2021. But here is the curve ball. The new law is currently effective, although F.S. §736.1403 provides “(a) If the trust was created before July 1, 2021, this part applies only to a decision or action occurring on or after July 1, 2021.”

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami Trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

The Covid-19 Pandemic has changed the world as we know it and presented daunting challenges we have not encountered in our life time. It requires a total review of your estate plan and business entities to assure you are taking full advantage of Florida laws designed to protect your family and business.

The hard new reality: What plan was best for you prior to 2020 may not be what is best for you today

Take this three minute survey for a quick assessment:

If single: Special 2020 Asset Protection Checklist for Single Professionals

If married: Special 2020 Asset Protection Checklist for Married Professionals Note to All: Two important legal documents for everyone over age 18:

• An up-to-date Florida specific Durable Power of Attorney
• A comprehensive Florida Health Care Surrogate

Special note to all parents with college students and young adults:

We now know that COVID-19 can attack any age. The last people who consider a DPA and Health Care Surrogate mentioned above are young adults. If you are a parent with adult children over age 18, I urge you to convince your sons or daughters to secure these important legal instruments. For a flat fee, we are available to prepare these documents, review the key legal provisions with your adult children, and email them for signing.

We will get through this together, as we did after Pearl Harbor and 9/11, and will be a stronger, more united country. Stay well and stay safe!

DURABLE POWER OF ATTORNEY FROM DON LEWIS TO CAROLE BASKIN dated November 21, 1996

Here is an updated calculator from Turbotax: Stimulus Check Calculator When Will Checks Arrive?

If you signed up for direct deposit on either your 2018 or 2019 tax return, the IRS reportedly will start issuing electronic deposits on April 9 and they should show up in your bank account by April 14. However, remember, this program is fluid and these target dates are subject to change.

If you receive Social Security Benefits and usually don’t file a tax return, the IRS will use the information from your Social Security benefits statement to calculate the stimulus check amount. They will send the check electronically if that is how you typically receive your Social Security payments.

Note: For persons who don’t file a tax return, the IRS plans to create an on-line portal where you can file a “simple return” to provide your bank account information. This portal should go live within the next few weeks.

If the IRS has to send you a paper check, priority will be given to lower income persons; higher income persons will wait longer to get their checks.

Quick Tip: If you want to try to get your check sooner, then file your 2019 tax return as soon as possible and sign up for direct deposit.

In these challenging times, we are here to help you, your family and small business successfully navigate this massive but temporary storm. We will get through this together! Look for our future alerts.

In 2008 Florida passed an amendment to our Trust Code designed to allow a Trustee to use trust funds to pay legal fees incurred in defending a breach of trust litigation without prior court approval, so long as the Trustee gave notice to qualified beneficiaries of its intent to do so.

On its face, Florida Statute, F.S. 736.0802(10), seems to give the Trustee access to Trust funds to defend itself, but on closer examination, it creates a potential conflict of interest sandtrap.

Yes, the Trustee can give notice to the qualified beneficiary of its intent to use trust funds to pay attorney fees. However, if the beneficiary moves to prevent the trustee from paying attorneys’ fees and costs from the trust, and is able to proffer sufficient evidence to establish a “reasonable basis for the court to conclude that there has been a breach of Trust,” F.S. 736.0802(10)(b) authorizes the court to enter an order prohibiting further payment and order a refund of any fees already paid, unless the court finds good cause not to do so.” So, if the court orders a refund, who pays? The Trustee? The Attorney? The Florida Trust Code is silent. Hence, the ethical quagmire. For a more complete analysis see, Hidden In Plain Sight: Avoiding Conflicts of Interest In Trust Litigation, Florida Bar Journal, Vol. 90, No. 1 January 2016, by Matthew Triggs and Jessica D. Zietz.

Solution For the Trust Drafter

F.S. 736.0105(2) provides that the terms of a trust override the Florida Trust Code with only a few exceptions not applicable here. Therefore, the Trust Settlor can avoid the morass of F.S. 736.0802(10) by: (1) explicitly stating that the Settlor does not want any Trustee to be reluctant to accept the duties of Trustee for fear of threats or lawsuits that might force the Trustee to pay fees and costs from the Trustee’s personal resources; (2) waiving any conflict of interest for trustee using trust assets to defend the trustee for breach of trust action; (3) stating that the Trustee can pay any and all attorney fees and costs from the Trust assets to defend the Trustee before and after a lawsuit is filed, excepting only acts of willful wrongdoing and gross negligence on the part of the Trustee; (4) waiving all statutory requirements and rights as set forth in F.S. 736.0802(10).

Take-Away Point For The Trust Drafter

1. Consider a definitive conflict waiver and authorization for payment of attorney Fees and costs to defend a breach of trust action incorporating the four elements discussed above in all Florida Trust Agreements.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Weston estate planning attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Florida’s 30% elective share law was completely rewritten in 2001 because the old law could be easily circumvented by placing assets in a revocable trust or using non-probate transfers (e.g. life insurance, IRAs etc.) In an effort to curtail such tactics, the legislature overhauled the statute and broadened the share. The result is an expansive elective share that sweeps into the decedent’s “elective estate” many non-probate assets. See F.S. §732.201 —§732.2155.

What Is Included? Florida’s elective share statute retains the 30% share under prior law, but introduces the concept of the “elective estate” (sometimes referred to as “augmented estate”) that consists of the following property interests under F.S. §732.2035:

• Decedent’s probate estate;
• Decedent’s fractional interest in property held by the decedent in joint tenancy with rights of survivorship or tenancy by the entireties;
• Property in a revocable trust or a discretionary trust for the decedent’s benefit;
• Cash surrender value of insurance policies on the decedent’s life;
• Death benefits payable under retirement plans;
• Certain transfers within a year of the decedent’s death;
• Transfers in satisfaction of the elective share;
• “Pay on Death” or “POD”; “Transfer on Death” or “TOD”; and “In Trust For” or “I/T/F”; and co-ownership with rights of survivorship accounts. The decedent’s interest is that portion that the decedent could withdraw immediately before death without an obligation to any person. If Tenancy by the Entireties, one-half is included.

This is not a complete list; see F.S. §732.2035. What is Excluded?

Not much. Here are some of the major exclusions:

• Real property that constitutes the decedent’s homestead;
• Insurance in excess of the cash surrender value is generally excluded;
• Gifts that qualify for the gift tax annual exclusion; and
• Transfers with the written consent of the spouse. (Spousal consent to gift split is not written consent.)

Again, this is not a complete list; see F.S. §732.2045.

Deadline for Making Elective Share Election

The general rule is that the election must be made within the earlier of six months of the date of service of the Notice of Administration or two years from the date of death. F.S. 732.2135.

Rarick Trusts & Wills Law has been trusted by numerous law firms and many families during the past 20 years for probate, estate planning, trust and asset protection cases. To schedule an appointment with Phil Rarick, a Miami probate attorney, call (305) 709-2858 or email info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced in Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Many persons are tempted to have a “Simple Will” in which they want everything they own at death to go outright first to their spouse, and if the spouse does not survive then to their children in equal shares. Rather than take the time to consult with a Weston estate planning attorney, many persons are tempted to write the Will themselves, using will forms they see advertised on TV. Read more: 5 Common Mistakes With Florida Do-It-Yourself Wills

In our practice we have seen many so-called “Simple Wills”. Most have big problems that end up costing the family much more fees and causing more stress than if the person had the Will drafted by an experienced Weston estate planning attorney. Here are just four big problems, but there are many more:

1. The Will must go through the Florida probate process. Probate is like a lawsuit: You must file a petition with the court and first prove that the will is in fact the last, valid will of the decedent. Probate in Florida is slow, because it is a bureaucratic process requiring a Florida probate attorney: you cannot act as your own attorney unless the estate is under $6,000. Read more: What’s Bad About Probate

2. The Minor Child Problem. It is always a mistake to give a minor an outright distribution of anything because the court will need to appoint a Guardian Ad Litem – which means your estate will now have to pay for two attorneys. Your child will then need to have a guardianship until the child is 18 years of age. More important, any child is likely to blow the money if they receive an outright distribution at age 18: rather than use the money for a college education they will be tempted to buy a fast car or make some other foolish decision. Read More: Big Mistake Naming a Minor the Beneficiary – of Anything!

3. The Adult Child Who Is A Poor Money Manager. Most persons want their hard earned moneys to go to their children – not to their children’s credit card holder to pay off a credit card debt. There are legal solutions to help ensure that the money is not wasted in this fashion. See below.

4. The Adult Child Who Is In a Shaky Marriage. Just as problematic is the adult child who is in a marriage that is contentious and possibly to end in divorce. Few persons want their daughter-in-law or son-in-law to be a primary beneficiary of their will. Again, with proper planning, there are ways to avoid this, but a Simple Will is not the answer.

The Best Solution

Virtually all people want to give what they have, the way they want with the least possible cost. To achieve these goals, most people need a revocable living trust, not a Simple Will. A well drafted and properly funded living trust can avoid the four problems discussed above. The living trust is simply detailed, legally binding instructions to make sure your savings and nest egg go to your loved ones – and no one else – without going through a probate process. The living trust is also a way to ensure that your hard earned property goes to your children – and they do not blow it or allow it to be claimed by a credit card company or a spouse.

To speak with an experienced Weston estate planning attorney call Phil Rarick at (305) 709-2858.

You have done it. You have guided (or you have survived) your children’s teen years. They are now over 18. They are now “sui juris” in the eyes of the law: this means they are fully independent to make their own legal choices. And you would like to help them to continue to make good choices. Here are three threats most parents are concerned about – especially when it comes to passing on hard-earned savings to your children in event of death.

Threat #1: “My kids will blow it.” How many young persons in their 20’s are good money managers? Would they have the discipline to use it for college or graduate education? Or would they put the money in a hot, new car and lavish life style?

Threat #2: Creditors or College Debt will eat it up.

Threat #3: Your adult child gets married and a new spouse will grab it.

How to Protect Your Children After 18

The answer is a living trust with a Protective Safe Harbor Trust for each child. Think of your living trust as a chest of drawers. A Safe Harbor Trust is simply another drawer in this chest. Each child can have a separate drawer or trust. The Safe Harbor Trust would make sure your monies are managed at your death by a person you trust who must follow your instructions. The trustee’s job would be to make sure the money is used in a wise and prudent way for your child’s (1) Education; (2) Health; (3) Best interests: such as a car (maybe a Honda) if needed to get to work while in college.

Take Away Point

The Safe Harbor Trust can help your child from blowing these monies, from a creditor trying to attack it, or from a new spouse trying to get it. You work hard for your savings; you want to protect every dime. For these reasons, every parent with children should consider a Safe Harbor Trust.

For more information, contact Phil Rarick, a Weston estate planning attorney, at (305) 709-2858 or info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Weston estate planning attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Hard to believe we are in mid-Fall and 2016 is coming to a close. Now may be a good time to sit down with a Miami trust attorney and review your estate plan. One of the biggest problems we see with individual estate plans is failure to keep the plan updated to ensure that it continues to meet the changing needs of your dynamic family. Here is a short checklist:

1. Marriage/Divorce.Has there been a marriage, divorce, or separation of anyone named in your will or trust – such as your adult children or grandchildren? Most persons want to ensure that their hard earned money goes to their children – or grandchildren – not to any spouses.

2. New Births Of Children/Grandchildren. Has there been a birth or adoption of a child or grandchild? First, if so, congratulations! Second, this child may need to be added as a beneficiary of your will or trust with detailed instructions to make sure all funds are wisely spent first for education or health needs.

3. Discord in Family. Unfortunately, we have seen too many cases where family warfare breaks out among the children where the father, mother, or both are no longer around to maintain peace. To avoid such disharmony, it is important to have clear instructions in your living trust and a strong, independent successor trustee with good peace making skills. If this is a concern, have you addressed it in your trust prepared by a Miami trust attorney?

4. Disability of beneficiary. Have any of the persons you have named as a beneficiary suffered any type of mental or physical disability? If so, it may be necessary to modify your instructions to make sure any funds designated for this beneficiary are used in the most effective way possible. For example, if a beneficiary may be entitled to receive SSI or other government benefits, this beneficiary may need a Special Needs Trust.

5. Poor Money Managers in the Family. Are any children not good money managers?Do you need to amend your trust instructions to make sure these funds are protected and cannot be grabbed by their creditors?

6. Successor Trustee.This is the person you have appointed to step into your legal shoes if you become incapacitated – in other words, one of the most important decisions you can make. Who have you appointed to take charge if you are incapacitated? What is the order of succession of trustees?

7. Year End Gifts. This year, any person can give $14,000 to any person – child, grandchild, or friend – tax free. This gift must be made prior to December 31. Such gifts require no reporting to the IRS, but gifts in excess of $14,000 do. Remember: you never want to make such a gift outright to a minor child because they may blow it when they turn 18. Better to make the gift to an Educational Trust for the benefit of the minor child.

As Miami trust attorneys, we endeavor to help keep your estate plans up to date with the changing needs of your family. We are available to meet through December 16. Please call Christy at (305) 709-2858 or email to cmedina@raricklaw.com to schedule an appointment. Have an enjoyable November!

Note: Your revocable living trust is designed to be as dynamic as your family. It serves as the master set of instructions to care for you and your family. Therefore, when there are big changes in your family, you may need an experienced Miami trust attorney to amend your revocable trust.

______#1. Marriage/Divorce. Has there been a marriage, divorce, or separation of anyone named in your will or trust? If there has been a marriage of an adult child (without a prenuptial agreement) you may need to amend your revocable trust to make sure monies designated for this adult child are protected.

______#2. New Births Of Children/Grandchildren. Has there been a birth or adoption of a child or grandchild? This child or grandchild may need to be added as a beneficiary.

______#3. Discord in Family. Is there a potential for disharmony to break out in the family if you are disabled or no longer around to maintain peace? In such a case you need to amend your revocable trust to ensure you have a strong, independent successor trustee with good peace making skills.

______#4. Disability of beneficiary. Have any of the persons you have named as a beneficiary suffered any type of mental or physical disability? If so it may be necessary to modify your instructions to make sure any funds designated for this beneficiary are used in the most effective and prudent way possible. For example, if a beneficiary may be entitled to receive SSI or other government benefits, this beneficiary may need a Special Needs Trust.

______#5. Poor Money Managers in the Family. Are any children not good money managers, or if married, have marital issues with their spouses? Do you need to amend your trust instructions to make sure these funds are protected and cannot be grabbed by their creditors – or an unhappy spouse? As Miami trust attorneys, Let us know if we can help amend your trust.

______#6. Successor Trustee. This is the person you have appointed to step into your legal shoes if you become incapacitated – in other words, one of the most important estate planning decisions you can make. Who have you appointed to take charge if you are incapacitated? What is the order of succession of trustees? If you have any question whatsoever about your order of succession, please call the office at (305) 709-2858.

______#7. 2013 Estate Tax Planning Check. The American Taxpayer Relief Act (ATRA) fundamentally changed estate tax planning beginning in 2013. For 2016 the new law increases the estate tax exemption to $5.45 million per person. If you have a credit shelter trust prepared prior to 2013, it should be reviewed now. If you are not sure of the type of trust you have, call the firm at (305) 709-2858.

______#8. Trust Funding. Funding is simply the transfer of your assets into your trust. If our firm drafted your trust, immediately after you signed your trust, we reviewed how your assets are titled and gave you detailed Funding Notes. Have you followed up on these instructions? It is a good idea to annually review the funding of your trust. It is also advisable to annually sign a new assignment of assets into your trust that will help sweep into the trust assets owned on the date of the transfer.

______#9. Life Insurance. When is the last time you checked (a) the owner of your life insurance policies; and (b) the beneficiary designations for those policies? Typically, you want your living trust to be the beneficiary of your life insurance policy because the trust provides the detailed instructions to help ensure the money is prudently used.

Big Note: Some life insurance should be owned by an irrevocable life insurance trust to avoid the estate tax.

______#10. Estate Plan Review. Has it been more than three years since we sat down and reviewed your estate plan? If so, we recommend that you schedule a meeting as soon as convenient to assess whether your plan continues to meet all the needs of your family. This list contains some of the frequent life changes and should not be a substitute to a consultation.

APPOINTMENT:

To schedule an appointment to review or amend your revocable trust or the funding of your trust, call Rarick Trusts & Wills Law, experienced Miami trust attorneys, at (305) 709-2858 or email Christy at cmedina@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.