- Trust Reformation/Construction
- Trust Contests
- Failure to make proper and timely distributions
- Improper investments
- Self dealing
- Excessive trustee compensation
- Interpreting ambiguous trust provisions
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Florida trust litigation involves two distinct types of litigation: Trust Contest and Trust Litigation.
Florida Trust Contest: A Trust contest is a form of litigation challenging the administration of a decedent's Trust or seeking to revoke the Trust instrument that is already being administered. A Trust may be attacked in Florida civil court on the basis that the person who signed the document lacked mental capacity (senile, dementia, delusional, unsound mind) at the time the documents were created; the grantor (individual who created the trust) was subjected to fraud, coercion or undue influence during the documents creation and implementation; there are ambiguities in the document; or the Trust is a forgery or does not conform to the legal requirements of Florida law. A person must have legal “standing” to contest a Trust in Florida civil court.
Florida Trust Litigation: Trust litigation typically arises when a fiduciary or successor trustee breaches one of his, her or their fiduciary obligations. These obligations include: loyalty of all trust beneficiaries (current and remainder); Deal impartially with beneficiaries; Make the trust property productive; Invest only in prudent investments; Account to beneficiaries and keep beneficiaries informed; Keep trust assets separate; Preserve the trust assets and uphold the trust; File tax returns and pay any tax due; Distribute income and principal as required by the Trust; and Good record keeping.
Florida trust litigation also includes situations where third parties may file suit against the Trust estate for debts the decedent owed to the third parties, or if the decedent may have caused injury to another, or breached his contractual duties to another.Florida Trust Accounting: A Florida Trust beneficiary may not have an issue with how a Trust has been administered until they are in receipt of an annual or final accounting. The Trust accounting may reflect inappropriate expenditures (excessive Trustee compensation, misuse of funds, personal expenditures, etc.) by a Trustee. A Florida Trust beneficiary will have six months from receipt of the accounting to file an objection to it or be forever barred. When these disputes can not be amicably resolved, litigation may be required against the Trustee. The litigation can be in the form of an objection to the Florida Trust accounting, an action for removal of the Trustee, and/or to surcharge the Trustee.
Florida Elective Share: A surviving spouse may maintain a cause of action against a Florida Trust in order to claim his or her entitlement to at least 30% of the decedent's estate.
Marc J. Soss, Esquire
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