Everything you ever wanted to know about drafting opinion letters involving Florida trusts (+ great forms!). What else could you ask for?
If you're like most trusts-and-estates lawyers, you don't work at a big firm. Which means you can't walk down the hallway and ask one of your partners for a good set of forms when someone wants to hire you to provide a legal opinion on some trust-related issue (as opposed to a tax opinion). Don't underestimate the value of a good set of forms. Good forms don't take the place of your experience and expertise, but they do provide an invaluable "checklist" of issues to think about and a road map for getting the job done "on time and under budget."
The "Report on Third-Party Legal Opinion Customary Practice in Florida, dated December 3, 2011" of the Legal Opinion Standards Committee of the Business Law Section and the Legal Opinions Committee of the Real Property, Probate and Trust Law Section was approved in December 2011 at meetings of the Executive Council of each Section. This report is the "gold standard" for Florida legal-opinions. Not only does it explain each and every element of a well-done opinion letter (highlighting pitfalls most of us would never imagine), it provides sample opinion letters plus an illustrative form of "certificate to counsel" that can be used in connection with rendering third-party legal opinions.
Here's an excerpt introducing the trust section of the report.
Opining Counsel may be asked to render an opinion concerning the status of a Florida trust. Unlike Florida corporations, partnerships or LLCs, a Florida trust is not a separate statutory entity under Florida law. Rather, a Florida trust is a fiduciary relationship with respect to property (whether real property, personal property or both) subjecting the person or persons by whom the title to the property is held (known as the “trustee” or “trustees”) to equitable duties to deal with the property for the benefit of another person or persons (known as the beneficiary or beneficiaries), all of which arises as a result of a manifestation of an intention to create a trust arrangement. Thus, for purposes of rendering an opinion regarding a Florida trust, the Client is really not the trust itself, but rather the person or persons serving as the trustee or trustees of the trust for the benefit of the beneficiaries. As such, the proper status inquiry in the context of a trust should be based on whether the trustee or trustees is or are properly organized and existing and has or have active status.
Thus, if Florida counsel is asked to render an opinion concerning the status of a Florida trust, the Opinion Recipient should want to know whether the Client(s) is or are the trustee(s) of the trust. For this reason, the recommended forms of opinion state that the Client(s) is or are the trustee(s) of the trust and go on to specify the legal basis for such designation.