What Can I Actually Do If My Florida Trustee Is Stealing or Mismanaging the Trust?

“I know something is wrong, but I don’t know what I can do about it.” This is what Florida trust beneficiaries say when they first call attorney Weidner. Here is exactly what you CAN do under Florida Statute §736.1001.

The Legal Framework: §736.1001 and the Florida Trust Code

Florida Statute §736.1001 is the primary provision authorizing courts to remedy breaches of trust. When a Florida trustee has breached their fiduciary duties — through self-dealing, mismanagement, failure to account, or outright theft — §736.1001 and the surrounding provisions of the Florida Trust Code provide specific, enforceable remedies. These are not theoretical rights. Florida courts award these remedies regularly.

Remedy 1: Compel an Accounting

If your trustee has not provided required accountings, the fastest and most direct remedy is to petition the court to compel accounting. Courts grant these petitions quickly — and once a trustee has been ordered to account, they must produce all trust records for examination. This accounting then becomes the foundation for evaluating any additional claims against the trustee.

Remedy 2: Remove the Trustee

Florida courts can remove a trustee for breach of fiduciary duty, incapacity, persistent failure to administer the trust effectively, or in any situation where removal serves the best interests of the beneficiaries. Removal is not a drastic last resort reserved for the most extreme situations — it is a standard, regularly-granted remedy when a trustee has demonstrated that they cannot or will not fulfill their obligations.

Remedy 3: Surcharge

A surcharge is a court order requiring the trustee to personally compensate the trust for losses caused by their breach. This is real, personal financial liability — the trustee pays from their own assets, not from the trust. Courts have entered surcharge orders against Florida trustees for investment losses, excessive fees, self-dealing transactions, failure to collect assets, and failure to account for trust property.

Remedy 4: Attorney’s Fees From the Trustee Personally

Under Florida law, a prevailing beneficiary in a trust dispute may be entitled to recover attorney’s fees from the trustee personally — not from trust assets. This is one of the most powerful deterrents in Florida trust law. A trustee who has breached their fiduciary duties may end up paying both the damages they caused and the legal fees of the beneficiary who sued them. This fee-shifting provision makes it economically viable for beneficiaries to enforce their rights even in cases where the damages alone might not justify the cost of litigation.

Frequently Asked Questions

How long do I have to sue a Florida trustee for breach of fiduciary duty?

The general limitations period for Florida trust claims is 4 years from when the breach was discovered or should have been discovered. However, Florida Statute §736.1008 cuts this to 6 months after a trustee sends an accounting that adequately discloses the facts giving rise to the claim. This is why reviewing accountings carefully and promptly is so critical.

What evidence do I need to prove a Florida trustee is breaching their duties?

Evidence in Florida trust litigation typically includes: trust accountings; bank and investment account records; real estate records; emails and communications between the trustee and advisors or beneficiaries; appraisals; and expert testimony. A Florida trust litigation attorney can help you identify what evidence exists and how to obtain it, including through formal discovery if the case becomes adversarial.

Can I force a trustee to step down in Florida without going to court?

Sometimes trustees will resign voluntarily when confronted with evidence of their breaches and the legal consequences. If the trustee is willing to negotiate, a settlement agreement can resolve the dispute without full litigation — including the trustee’s resignation and agreement to compensate the trust for losses. But if the trustee refuses to cooperate, court proceedings are available.