Can You Trust Your Trustee? Florida Trust Code Explained

Just because a trust was designed to avoid court supervision doesn’t mean the trustee can do whatever they want. Under Florida’s Trust Code, trustees are subject to powerful legal duties — and courts will enforce them.

The Core Fiduciary Duties Every Florida Trustee Owes

Florida Chapter 736 (the Florida Trust Code) establishes a comprehensive set of fiduciary duties for trustees. These duties are not optional, and they cannot be waived by the trustee unilaterally. Every Florida trustee — professional or family member — owes these duties to every beneficiary.

§736.0801: Duty to Administer in Good Faith

The foundational duty: a trustee must administer the trust in good faith, in accordance with its terms and purposes, and in the interests of the beneficiaries. Everything else in the Trust Code is an elaboration of this basic obligation.

§736.0802: Duty of Loyalty — The Most Litigated Duty

The duty of loyalty requires a trustee to act solely in the interest of the beneficiaries — not in the trustee’s own interest, not in the interest of the trustor’s family members who are also the trustee, and not in the interest of business partners or financial advisors who have relationships with the trustee. Self-dealing transactions — even inadvertent ones — breach this duty, and the breach occurs the moment the conflict arises regardless of whether harm results.

§736.0804: Prudent Administration

Trustees must administer the trust with the care, skill, and caution of a prudent person. This includes prudent investment management (the Prudent Investor Rule), prudent record-keeping, prudent decision-making on distributions, and prudent management of all other trust matters. A trustee who lacks the skill required for particular duties must engage agents who have that skill — and must supervise those agents.

§736.0813: Duty to Inform and Account — The Beneficiary’s Strongest Protection

Florida trustees must keep beneficiaries informed of the trust’s existence, its terms, and its administration. Annual accountings are required (unless validly waived) that detail trust assets, liabilities, income, and distributions. Trustees who fail to provide required accountings are in breach of the Florida Trust Code — and courts will compel compliance, and may remove trustees who persistently fail to account.

Consequences for Trustees Who Violate These Duties

When a Florida trustee breaches a fiduciary duty, the available remedies include: removal of the trustee; surcharge (personal liability for losses); disgorgement of improperly obtained profits; voiding of self-dealing transactions; and — critically — an award of attorney’s fees payable from the trustee’s personal assets. The financial exposure for a trustee who has violated these duties can be enormous.

Frequently Asked Questions

Can a family member serve as trustee of a Florida trust?

Yes. Family members commonly serve as trustees of Florida revocable and irrevocable trusts. But family member trustees are held to exactly the same legal standards as professional corporate trustees. A sibling or adult child who serves as trustee owes all of the same fiduciary duties described above — and faces the same personal liability for breaching them.

What is the difference between a trustee and a personal representative in Florida?

A personal representative (executor) administers a decedent’s estate through the probate court process. A trustee administers a trust outside of court supervision. Both owe fiduciary duties to the beneficiaries they serve, but the specific duties, powers, and procedures differ between the two roles.

How do I remove a trustee in Florida?

Florida Statute §736.0706 provides for trustee removal by petition to the court. Grounds for removal include breach of fiduciary duty, unfitness to serve, persistent failure to administer effectively, and situations where removal would best serve the interests of the beneficiaries. Removal proceedings are handled in the Florida circuit court.