Florida breach of fiduciary duty attorney
A Florida breach of fiduciary duty attorney sues the person who was trusted with someone else’s money and used it for themselves — a trustee, an executor, or an agent under a power of attorney. Breach of fiduciary duty is the claim that gets the money back, and Florida’s version is unusually favourable to the beneficiary.
Jose M. Lorenzo, Jr. handles fiduciary litigation in all 67 Florida counties, in English and in Spanish — so the breach of fiduciary duty lawyer who reads the accountings is the one who argues the case. The initial consultation is free.
Updated August 7, 2026. Every statute below was read against the current Florida Statutes this week. The provision most beneficiaries have never seen is §736.1002, which measures damages as the greater of what the trust lost or the profit the trustee made — so a trustee who profits from a breach does not simply give back the loss.
This page is about estate and trust fiduciaries — trustees, personal representatives and agents under a power of attorney. It is not about choosing a fiduciary financial adviser.
What is breach of fiduciary duty?
Using a position of trust for your own benefit, or failing to use it for the benefit of the person you owe it to.
A fiduciary is not merely required to be honest. They are required to be loyal — to put someone else’s interests ahead of their own, completely, in every transaction touching the property they hold.
§736.0802(1) states it without qualification:
“a trustee shall administer the trust solely in the interests of the beneficiaries.”
Solely. Not mainly, not reasonably, not in balance with their own interests. It is the first thing a breach of fiduciary duty attorney tests every transaction against. That single word is what makes fiduciary claims different from ordinary disputes, and it is why conduct that would be unremarkable between strangers is actionable between a trustee and a beneficiary.
What are the elements of breach of fiduciary duty?
Three, and they are simpler than most claims:
- A fiduciary duty existed — created by a trust instrument, by appointment as personal representative, by a power of attorney, or by a relationship of trust and confidence.
- The duty was breached — by self-dealing, by failing to account, by failing to invest or safeguard, by favouring one beneficiary over another, or by simply not doing the job.
- Damage resulted — measured under §736.1002 for trusts, or by surcharge in an estate.
What you do not have to prove is intent. A fiduciary who breaches through carelessness, laziness or misunderstanding is liable in the same way as one who acts deliberately. There is no requirement to show a plan, a motive, or dishonesty.
And in several situations Florida goes further and shifts the burden onto the fiduciary — see the sections on self-dealing, undue influence and powers of attorney below.
Who owes a fiduciary duty in a Florida estate or trust?
| Who | Duty arises from | Key section |
|---|---|---|
| Trustee | The trust instrument and the Florida Trust Code | §736.0802 |
| Personal representative (executor) | Appointment by the court | §733.602 |
| Agent under a power of attorney | The power of attorney itself | §709.2114 |
| Curator | Court appointment | §733.501 |
| Cotrustee | Shared administration | §736.0703 |
§733.602(1) puts the estate version plainly: a personal representative “is a fiduciary who shall observe the standards of care applicable to trustees.”
The agent under a power of attorney is the one families forget — and in practice it is where most of the money moves, because a power of attorney operates while the person is alive and nobody is watching.
What counts as a breach — and when is it presumed?
The ordinary breaches: self-dealing, failing to account, failing to safeguard or invest, favouring one beneficiary, paying themselves unreasonable compensation, ignoring the terms of the instrument, and simply doing nothing.
But Florida does something unusual with self-dealing. §736.0802(2) makes a transaction “for the trustee’s own personal account or which is otherwise affected by a conflict between the trustee’s fiduciary and personal interests” voidable by a beneficiary — and subsection (3) presumes the conflict where the other side of the deal is:
- the trustee’s spouse
- the trustee’s descendants, siblings or parents, or their spouses
- certain affiliated persons and entities
You do not have to prove the trustee got a bargain. Once the relationship is shown, the conflict is presumed and the transaction is voidable unless the trustee brings it inside an exception — the trust authorised it, the court approved it, the beneficiary consented, or the beneficiary waited too long.
That last exception is why the deadlines below matter more than anything else on this page.
The accounting duty, and what silence means
§736.0813 requires a trustee to keep qualified beneficiaries “reasonably informed of the trust and its administration” — an affirmative duty to tell, not merely a duty to answer when asked. A trustee who has produced no annual accounting, or who has simply gone quiet, has breached a specific obligation whether or not the money is intact.
⚠️ But read what arrives, the day it arrives. §736.1008 bars a claim over any matter “adequately disclosed in a trust disclosure document” unless suit begins within six months after receipt. Receipt — not discovery, not understanding.
Full treatment: what a Florida trust accounting must actually contain, what to do when a trustee refuses to give one, and what to do when a trustee will not communicate — see Florida trustee removal attorney.
Can you sue a trustee for breach of fiduciary duty?
Yes — and the court’s powers go well past a money judgment.
§736.1001(2) lets a court, on a breach of trust:
- compel the trustee to perform, or to account
- enjoin the trustee from committing a breach
- compel the trustee to redress a breach by paying money or restoring property
- appoint a special fiduciary to take possession and administer
- suspend the trustee
- remove the trustee
- reduce or deny compensation
- void an act, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover it or its proceeds
Read that last one twice. “It has already been spent” is not the end of the analysis. Tracing follows the money into whatever it became.
What damages can you recover for breach of fiduciary duty?
In a trust case, the greater of what the trust lost or what the trustee gained.
§736.1002 measures liability as the greater of:
“(a) The amount required to restore the value of the trust property and trust distributions to what they would have been if the breach had not occurred, including lost income, capital gain, or appreciation that would have resulted from proper administration; or (b) The profit the trustee made by reason of the breach.”
Two consequences beneficiaries rarely expect:
- Lost growth counts. The measure is not what left the trust — it is what the trust would have been worth had the breach not happened, including appreciation and income foregone. A trustee who sold an asset cheaply in 2019 is answerable for what holding it would have produced.
- The trustee’s profit is an alternative measure, not a set-off. If the trustee made more than the trust lost, the beneficiary takes the profit. That is a disgorgement remedy, and it removes the incentive to breach where the upside is larger than the loss.
In an estate, the equivalent is surcharge — a personal money judgment against the personal representative restoring what their conduct cost the estate, alongside removal under §733.504 and denial of their compensation.
And where the asset was taken outright rather than mismanaged, §772.11 civil theft carries treble damages and attorney’s fees on clear and convincing proof, after a written pre-suit demand.
What is the statute of limitations on breach of fiduciary duty?
Four years by default — but the deadline that actually ends these cases is six months, and most people have never heard of it.
| Claim | Period | Authority |
|---|---|---|
| Matter disclosed in a trust accounting | 6 months from receipt | §736.1008 |
| Any action against the personal representative | Ends at discharge | §733.901 |
| Breach of fiduciary duty generally | 4 years | §95.11(3) |
| An action founded on fraud | 4 years | §95.11(3)(i) |
| Conversion of personal property | 4 years | §95.11(3)(g) |
| Objection after a notice of administration | 3 months | §733.212(3) |
The four-year figure is the one people find online and the one least likely to control. If accountings have been arriving, the six-month clock has been running on each of them. If the estate is closing, discharge bars the claim entirely.
What is power of attorney abuse, and what can a court do about it?
It is the most common fiduciary breach in Florida, because it happens while the person is still alive and nobody is auditing it.
An agent under a power of attorney is a fiduciary. §709.2114 requires the agent to act in good faith, within the scope of authority, and in the principal’s interest — not their own.
§709.2116 is the enforcement provision, and it contains two things that change cases:
The court may “construe or enforce a power of attorney, review the agent’s conduct, terminate the agent’s authority, remove the agent, and grant other appropriate relief.”
The burden shifts. Where the agent’s exercise of power is challenged on grounds of a conflict of interest, the agent must prove by clear and convincing evidence that they acted:
“(a) Solely in the interest of the principal; or (b) In good faith in the principal’s best interest.”
And fees are not discretionary in the usual sense — the statute provides that “the court shall award reasonable attorney fees and costs as in chancery actions” in these proceedings.
Put together: the agent explains themselves, to a heightened standard, and fees are on the table. That is a materially stronger position than an ordinary civil claim, and it is why transfers made under a power of attorney in the final years are worth examining closely.
Removal as a remedy
A money judgment is not always the point. A trustee may be removed under §736.0706 for a serious breach of trust, cotrustee deadlock, unfitness, unwillingness or persistent failure to administer effectively, or a substantial change of circumstances — and a personal representative under §733.504, including on conflict alone. None of those grounds requires proving dishonesty.
Full treatment: the four statutory grounds quoted in full, suspension and a special fiduciary while the petition is still pending, how to remove an executor, and challenges to trustee and executor compensation — see Florida trustee removal attorney.
What is a fiduciary bond, and does it help you?
A fiduciary bond is security a court may require before letting someone administer an estate — a promise, backed by a surety company, that the fiduciary will perform.
Why it matters to a beneficiary: the surety is a second source of recovery. Where a personal representative has dissipated assets and has nothing left personally, the bond can stand behind the surcharge.
Two practical points:
- Failure to give bond when ordered is itself a ground for removal under §733.504.
- The bond does not survive discharge. §733.901 provides that discharge releases the personal representative “and the surety.” Once the estate closes, the bond closes with it.
Where are fiduciary cases filed in Florida?
In the probate division of the circuit court where the estate or trust belongs. Because most of these cases turn on how quickly you can compel an accounting or suspend a fiduciary, the county’s hearing procedure matters — each page below sets out that court, its filing rules and its emergency route.
| County | Circuit | Page |
|---|---|---|
| Miami-Dade | Eleventh | Miami probate litigation attorney |
| Broward | Seventeenth | Fort Lauderdale probate litigation attorney |
| Palm Beach (north) | Fifteenth | West Palm Beach probate litigation attorney |
| Palm Beach (south) | Fifteenth | Boca Raton probate litigation attorney |
| Hillsborough | Thirteenth | Tampa probate litigation attorney |
| Pinellas & Pasco | Sixth | Pinellas County probate litigation attorney |
Fiduciary matters are handled in all 67 counties.
What does a breach of fiduciary duty case cost?
A breach of fiduciary duty lawyer prices the work by what has to be reconstructed, not by the size of the trust.
What moves the number:
- how many years of accountings and statements must be obtained and analysed
- whether an accounting exists at all — a petition to compel is short; reconstructing an unaccounted decade is not
- whether the transaction falls inside the §736.0802(3) presumption, which shifts the burden and shortens everything
- whether the claim runs against a power of attorney, where §709.2116 shifts the burden and provides for fees
- whether civil theft is available, which brings treble damages and fees
- whether the fiduciary is also a beneficiary, which merges two disputes
- whether a bond or a surety is in play
Ask about fee recovery at the first meeting. Between §709.2116, §772.11 and the court’s discretion over which share bears costs under §733.106, fiduciary cases have more fee-shifting routes than most probate litigation — and that frequently decides whether a claim is worth bringing.
What you will not find here is a prediction of your odds. Rule 4-7.13 prohibits promises about outcomes.
Credentials you can check
The Florida Bar certifies in Wills, Trusts and Estates, and Rule 4-7.14 permits specialist or expert only where the claim is objectively verifiable.
- Jose M. Lorenzo, Jr., Florida Bar No. 107002 — confirmable free through The Florida Bar’s member directory.
- Practice concentrated in probate, wills, trusts and the transfer of Florida real property.
- Solo practice: the person who answers the phone files the petition and appears at the hearing.
- Service in English and Spanish, in all 67 counties.
Rule 4-7.13 prohibits unsupported comparisons, so you will not read that this is the best firm in Florida.
What to do this week
If a trust accounting has arrived, the six-month clock in §736.1008 started the day you received it — not the day you read it. That is the single most common way a good fiduciary claim is lost.
Bring five things:
- Every accounting and statement the trustee or personal representative has produced, with the date each arrived.
- The trust instrument and every amendment, or the will and the letters of administration.
- Any power of attorney, and anything showing what was done under it.
- Bank and brokerage records for the period in question, as far back as you can reach.
- Your correspondence with the fiduciary — including the requests they did not answer.
Speak to a Florida breach of fiduciary duty attorney directly — a breach of fiduciary duty lawyer who will read the accountings before advising you. Jose M. Lorenzo, Jr. — (305) 224-6811. Free consultation in English or Spanish, statewide. You can also write from the contact page.
Related: Florida trust litigation attorney · Florida estate litigation attorney · Florida inheritance lawyer · Florida will contest attorney · Florida probate litigation lawyer. Esta página en español: impugnar un testamento en Florida.
About this page. Author and reviewer: Jose M. Lorenzo, Jr., Florida Bar No. 107002. Every statute cited was read against the Florida Statutes on August 7, 2026.
This page offers general information about Florida law and is not legal advice for a specific case. Reading it does not create an attorney-client relationship. Every estate turns on its own facts, and the law changes.