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Can My Florida Trust Be Modified After I Die?


Generally speaking, if you create a revocable living trust as part of your estate plan, the trust becomes irrevocable upon your death. In other words, your successor trustee cannot unilaterally modify the terms of the trust. In some situations, however, a Florida probate court can “modify the terms of a trust” if it is not “inconsistent” with the settlor’s original purposes.

For example, Florida law permits modification when the “purpose of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill.” A judge may also modify a trust if the original terms are “not in the best interests of the beneficiaries.” But this does not mean that a trust can be modified simply because the beneficiaries would prefer an alternative arrangement to the one specified by the settlor–i.e., the person who made the original trust.

Appeals Court Rejects Son’s Efforts to Terminate Mother’s Trust

Consider this recent decision by the Florida Second District Court of Appeal. A woman–the settlor–created a revocable living trust in 1993. She amended it at least twice during her lifetime before passing away in 2010. According to the terms of the trust when it became irrevocable, the trust was required to distribute a lump-sum cash gift to the settlor’s personal assistant. The balance of the trust would be retained for the benefit of the settlor’s only child. He would receive the income from the trust in quarterly installments. Upon the son’s death, the remaining principal would then be distributed to various educational institutions.

The son and personal assistant were also named as co-successor trustees. Trust litigation arose between the two in 2015. The son wanted to terminate the trust–with the consent of the educational beneficiaries–and distribute the funds based on their current worth. When the other co-trustee balked at this arrangement, the son filed a lawsuit seeking judicial modification of the trust.

Although a probate court granted the son’s request for modification and early termination, the Second District reversed in favor of the other co-trustee. To put it simply, the Second District saw no justification for modifying the terms of the original trust. To the contrary, the settlor was clear that she “wanted to provide for her son financially via incremental distributions of income until he died and then give the entire principal to the three educational institutions.” The son’s proposal–which would give him most of the principal right now–would “frustrate the purposes of the trust,” not facilitate it. And given there was no evidence that the trust was being managed in a wasteful or improper manner, the appeals court said there was no reason the trust should not continue as directed by the settlor.

Get Advice from a Florida Estate Planning Lawyer Today

Estate planning is about making sure your intentions are carried out, regardless of whether your children or other family members agree with your decisions. That is why you should always work with an experienced Fort Myers estate planning lawyer who can assist you in properly expressing your wishes via a will or trust. Contact the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation today.

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