SELECTING TRUSTEES UNDER FLORIDA TRUSTS LAW

The trust is an integral part of the structure of almost any estate plan. Its main benefit, of course, is that it keeps your assets out of probate so that your beneficiaries can receive their distributions immediately instead of waiting for probate to close. Imprudent selection of your trustee(s), however, can lead to nasty surprises down the road, for a variety of different reasons.

Who to Select as Your Trustee

The most obvious choice for trustee would be yourself — and believe it or not, you can do this as long as your trust is a revocable living trust. Of course, this could cause a problem if you intend your trust to endure past your own death. It is for this reason that it is a good idea to choose either a co-trustee, or a successor trustee who takes office after you die.

You can also decline serving as your own trustee and name someone else instead (which you must do if your trust is irrevocable). Most people choose a spouse, an adult child or a trusted friend. The reason why you should do likewise is that although the trustee is bound to certain legal obligations such as the duties of loyalty and care, he is likely to have the opportunity to cheat, and use your assets to do it. Your trustee should be someone you — well, trust.

The Importance of the Trust Document

Your trustee,  co-trustee or successor trustee can be named in the trust document, which you create and which governs the terms of the trust. As long as you draft a sound trust document, you have some legal protection against a co-trustee or successor trustee “going rogue” on you. Your trustee is legally bound to comply with the terms of the trust, and he can be sued or removed (or both) for failing to do so.

Institutional Trustees

You might also select an entity such as a bank trust department or a trust company to act as your trustee. Most of the people who exercise this option have funded large and complex trusts from which they expect prudent investments to be made. In this case, the investment expertise enjoyed by an institutional trustee might be just what you need.  

Important Considerations

Observing the following time-tested advice could save both you and your beneficiaries a lot of trouble:

• Be brutally realistic about whether you would be the best candidate to serve as trustee of your own trust. This is especially important if you anticipate that trust assets will be invested.

• If you decide to name yourself as trustee, and if you intend the trust to continue after you die, name a co-trustee (preferably someone a lot younger than you) who can continue as successor trustee after you die. This will give the co-trustee time to become familiar with the administration of your assets before you die and he has to administer the trust on his own.
• If you are selecting someone else as your trustee, evaluate the candidates based on hard-headed realism, not sympathy — and that includes institutional trustees.

Contact Lorenzo Law Today

Jose Lorenzo is a Florida estate planning and trusts attorney with a strong track record of success, both inside and outside the courtroom. We maintain offices in Coral Gables and Ft. Lauderdale, and we serve clients throughout Florida. We can be reached by telephone at (305) 999-5411, through our online intake form, by email at [email protected] or by visiting one of our offices.