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A trust is defined as “the legal relationship created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purpose.” Lewin on Trusts 4 (17th ed. 2000). A trust has the following characteristics –
- The assets constitute a separate fund and are not a part of the trustee’s own estate
- Title to the trust assets stands in the name of the trustee or in the name of another person on behalf of the trustee
- The trustees has certain powers and duties imposed on him or her by law.
Powers, duties, and liabilities of trustees
The trustee is a fiduciary, and therefore has certain powers, duties, and liabilities in that role. Powers grant the trustee authority, like the ones here at Giles & Robinson, P.A., to take action on behalf of the trust. There are certain powers provided by law, and the trust can grant additional or narrower powers. See generally Fla. Stat. §§ 736.0801-0817. As a fiduciary, a trustee has duties to the settlor, current income and principal beneficiaries, remainder beneficiaries, and certain others when dealing on behalf of the trust. Should the trustee breach one of his or her duties or fail to comply with trust terms, the trustee may be removed and also personally charged for the resulting damages. See Fla. Stat. §§736.1001 & 736.1002.
Resignation, removal and appointment of successor trustees
Every trust must have at least one trustee, and may have multiple trustees. A trustee must accept his or her appointment as trustee. See Fla. Stat. §736.0701. A trust will not fail for a lack of a then serving trustee, but it will be necessary to appoint a successor trustee. A trustee is free to resign as provided by law and the trust instrument. See Fla. Stat. §736.0705. Upon the resignation of a trustee or a trustee failing or ceasing to serve, a successor trustee shall be appointed. The successor trustee is usually named in the trust or the trust will have designated terms related to selecting a trustee. In the absence of direction under the trust, the income beneficiaries may elect the successor trustee and if they cannot reach a unanimous agreement a court can appoint a successor trustee. See Fla. Stat. §736.0704. A trustee may be removed upon petition by an interested party to the court where the court finds there has been a breach, uncooperative trustees, unfitness/unwillingness to administer trust, or the trustee has had a substantial change in circumstances. See Fla. Stat. §736.0706.
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