Professor David F. Powell: The New Florida Trust Code, Part 2
I previously wrote here about Part 1 of Professor Powell's series of Florida Bar Journal articles explaining Florida's new trust code. This month's Florida Bar Journal contains Part 2 of Prof. Powell's series entitled aptly enough "The New Florida Trust Code, Part 2". The new trust code provisions covered in this latest article are the following:
- Duties of a trustee
- Trustee Powers
- Liability of Trustees for Breach of Trust
- Exculpatory Clauses
- Remedies and Damages for Breach of Trust
- Costs and Fees
- Liability of Trustees to Third Parties
- Limitations on Actions Against Trustees
- Protection of Persons Other Than Beneficiaries Dealing with the Trustee
- Rules of Construction
- Charitable Trusts
Prof. Powell concludes his article with the following observations:
Even before the enactment of new Ch. 736, Florida already had an extensive body of statutory trust law, virtually all of which is found in F.S. Ch. 737. Nevertheless, enactment of the Code should prove beneficial because the Code is more structured, comprehensive, understandable, modern, accessible, and uniform than existing Ch. 737. Indeed, a major benefit of the Code is that it provides answers to a host of questions for which Florida’s law was previously not definitively settled. The added certainty the Code offers should promote efficiency and fairness to beneficiaries and trustees alike. At the same time, it should minimize the need for costly litigation.
I think Prof. Powell's last point is especially important. Knowledge is power, especially so in the trust litigation arena where the substantive law can be very complicated and the dollars at stake in most cases simply makes it economically unfeasible to learn all the trust-law nuances once you're involved in the case. In order to be truly effective, you need to know this stuff ahead of time. And if you do know your stuff, you'll probably know how to cut to a final result that works best for all concerned without going through two years of costly litigation to get there!
Amen to your final comment !! Dealing with attorneys who do not know the subtle nuances of the law, especially case law interpretations is always a frustrating, time consuming, expensive, waste of talent, but I guess that is why they still call it the practice of law.
Joseph - I always tell me clients competent opposing counsel is "good news." When the other side is lost in the woods, your client ends up paying you to educate the other side (either through extensive negotiations or court rulings). Juan.
Thank you for opportunity to share here. I have been researching without much success, to find authority that republication of a living trust( by way of a trust amendment) will validate the testamentary aspects of a trust which originally was not executed as required by Florida law. It is true that Florida law (FS 732.511 and 732.5105) provides specific relief for wills when a republication takes place. This appears to be a result of statutory rule. Where is there a trust statute that provides the same relief when a trust is republished? Thanks for any ideas and suggestions.
Jerry - F.S. §737.111 provides that the testamentary aspects of a trust executed on or after October 1, 1995, are invalid unless the instrument is executed by the settlor with the formalities for the execution of a will. Hope this helps. Juan.