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Richard
Richard, Attorney
Category: Legal
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Experience:  Attorney with 29 years of experience.
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my mother made my 3 brothers co-trustees. I was able to have

Customer Question

my mother made my 3 brothers co-trustees. I was able to have one removed because he was in process of divorce and Trust states :he shall resign." No divorce is over and my brother said "he will get back in" as Trustee. The Trust does not address that. Do you know of any Fla. cases?
Also, the trustees today sent me their first trust accounting for the 3 years they have been trustees. I had filed a complaint for trust accounting almost 2 years ago. Could their delay be seen as a Breach of Fiduciary duty I want to use to stop them for paying their legal fees from the Trust and to have them removed. Any Fla. case law? I would gladly pay you extra for your kind assistance.
Submitted: 1 year ago.
Category: Legal
Expert:  Richard replied 1 year ago.
Hi! My name is XXXXX XXXXX I look forward to helping you!

The trust and its assets are not the personal piggy bank of the trustees. Rather, the trustees are obligated to administer the trust specifically pursuant to the terms of the trust. In addition, the trustees' fiduciary duty to each beneficiary requires that the trustees provide each beneficiary a full inventory of trust assets and periodic accounting of every dime in and out of the trust. Failure to do so is a breach of the trustee’s fiduciary duty to the grantor of the trust and to the beneficiaries. Such a breach gives the beneficiaries cause to ask the trustee to resign and if the trustee refuses to do so, gives the beneficiaries the right to file a petition with the family court asking the court to order the trustee removed. And, if there has been any misappropriation of estate assets, the beneficiaries can also ask the court to award actual and punitive damages against the trustee. You don't need case law to sustain a case for breach of fiduciary duty to have them removed. This is covered specifically by the duties imposed upon trustees under the Florida Trust Code. I have provided you the specific statutes below in that Code addressing the trustee's duties for accounting. Since they have failed to comply with these, they have breached their fiduciary duty and can be removed.

(NNN) NNN-NNNNDuty to inform and account.—The trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.
(1) The trustee’s duty to inform and account includes, but is not limited to, the following:
1(a) Within 60 days after acceptance of the trust, the trustee shall give notice to the qualified beneficiaries of the acceptance of the trust, the full name and address of the trustee, and that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the trustee and any attorney employed by the trustee.
1(b) Within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, the trustee shall give notice to the qualified beneficiaries of the trust’s existence, the identity of the settlor or settlors, the right to request a copy of the trust instrument, the right to accountings under this section, and that the fiduciary lawyer-client privilege in s. 90.5021 applies with respect to the trustee and any attorney employed by the trustee.
(c) Upon reasonable request, the trustee shall provide a qualified beneficiary with a complete copy of the trust instrument.
(d) A trustee of an irrevocable trust shall provide a trust accounting, as set forth in s. 736.08135, to each qualified beneficiary annually and on termination of the trust or on change of the trustee.
(e) Upon reasonable request, the trustee shall provide a qualified beneficiary with relevant information about the assets and liabilities of the trust and the particulars relating to administration.

736.08135 Trust accountings.—
(1) A trust accounting must be a reasonably understandable report from the date of the last accounting or, if none, from the date on which the trustee became accountable, that adequately discloses the information required in subsection (2).
(2)(a) The accounting must begin with a statement identifying the trust, the trustee furnishing the accounting, and the time period covered by the accounting.
(b) The accounting must show all cash and property transactions and all significant transactions affecting administration during the accounting period, including compensation paid to the trustee and the trustee’s agents. Gains and losses realized during the accounting period and all receipts and disbursements must be shown.
(c) To the extent feasible, the accounting must identify and value trust assets on hand at the close of the accounting period. For each asset or class of assets reasonably capable of valuation, the accounting shall contain two values, the asset acquisition value or carrying value and the estimated current value. The accounting must identify each known noncontingent liability with an estimated current amount of the liability if known.
(d) To the extent feasible, the accounting must show significant transactions that do not affect the amount for which the trustee is accountable, including name changes in investment holdings, adjustments to carrying value, a change of custodial institutions, and stock splits.
(e) The accounting must reflect the allocation of receipts, disbursements, accruals, or allowances between income and principal when the allocation affects the interest of any beneficiary of the trust.
(f) The trustee shall include in the final accounting a plan of distribution for any undistributed assets shown on the final accounting.
(3) This section applies to all trust accountings rendered for any accounting periods beginning on or after January 1, 2003.




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Customer: replied 1 year ago.


Thank you. Could you address the question about removed trustee (because was in divorce proceedings which are now completed) being able to become trustee again. How if not covered in the Trust?

Expert:  Richard replied 1 year ago.
You're welcome...it's my pleasure. And, thanks so much for following up. Here, the fact that the trust is silent regarding any reinstatement of a trustee works in your favor. The Florida Code has no specific provision requiring any reinstatement of a trustee after a trustee has been removed. Once removed by removed, that trustee no longer has any rights to be trustee unless the trust agreement specifically provides a mechanism for such a reinstatement or a court orders the reinstatement. And, in my experience, it is very unusual for a court to dos so. The burden is on the removed trustee to bring such a suit, not on the trust or the beneficiaries to accept the reinstatement without the court order.
Customer: replied 1 year ago.


good news. But he claims his brothers (the co-trustees) can appoint him trustee again and they said they would because the divorce is over. My mother the settlor is deceased.

Expert:  Richard replied 1 year ago.
The brothers don't get to make up the rules. They are fiduciaries to the beneficiaries and your mother as grantor. This is not their personal little trust with which they can do anything they want; they are governed strictly by the trust agreement. And, if the trust agreement does not give them the authority to reinstate a removed trustee, they don't have that right unless a court specifically allows it. If they try to do that, it would be another basis for you to have them all removed for breach of fiduciary duty.
Customer: replied 1 year ago.


You have given my some hope. My brothers have paid themselves salaries, health insurance and monthly meeting expense. It has been a nightmare.

Expert:  Richard replied 1 year ago.
It's been my pleasure to help you level the playing field here. I think given your facts you're not going to have any problem not only getting them removed, but also having a claim for both actual damages and punitive damages due to their misappropriation of trust assets. :)
Richard, Attorney
Category: Legal
Satisfied Customers: 46837
Experience: Attorney with 29 years of experience.
Richard and 2 other Legal Specialists are ready to help you
Expert:  Richard replied 1 year ago.
Thank you so much for the positive rating! I truly appreciate you taking the time to do that! Have a great day!

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Richard
Richard
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