FLORIDA IRREVOCABLE TRUST AMENDMENT MECHANISMS
By Charles (Chuck) Rubin & Jenna Rubin
-------------------
Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A.
www.floridatax.com
Last Updated: July 2014
By Charles (Chuck) Rubin & Jenna Rubin
-------------------
Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A.
www.floridatax.com
Last Updated: July 2014
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NONJUDICIAL
MECHANISMS
MECHANISMS
Fla.Stats. §736.0111 -
Nonjudicial Settlement Agreements
Nonjudicial Settlement Agreements
Requirements
interested persons enter into an agreement [.0111(1)]
If agreement is among trustee and trust beneficiaries,
terms and conditions of agreement could be properly
approved by the court [.0111(3)]
terms and conditions of agreement could be properly
approved by the court [.0111(3)]
Changes Permitted
Any matter involving a trust [.0111(2)]
But subject to limitations that the agreement is valid only
to the extent (a) the terms and conditions could be properly
approved by the court, and (b) cannot be used to produce a
result not authorized by other provisions of the code such as
terminating or modifying a trust in an impermissible manner [.0111(3)]
to the extent (a) the terms and conditions could be properly
approved by the court, and (b) cannot be used to produce a
result not authorized by other provisions of the code such as
terminating or modifying a trust in an impermissible manner [.0111(3)]
Specifically authorized matters:
Interpretation or construction of the terms of the trust [.0111(4)(a)]
approval of a trustee's report or accounting [.0111(4)(b)]
direction to a trustee to refrain from performing a particular act or the
grant to a trustee of any necessary or desirable power [.0111(4)(c)]
grant to a trustee of any necessary or desirable power [.0111(4)(c)]
resignation or appointment of a trustee and the
determination of a trustee's compensation [.0111(4)(d)]
determination of a trustee's compensation [.0111(4)(d)]
transfer of a trust's principal
place of administration [.0111(4)(e)]
place of administration [.0111(4)(e)]
liability of a trustee for an action relating to the trust [.0111(4)(f)]
Who can seek
"Interested persons" - persons whose interest would be
affected by a settlement agreement [.0111(1)]
affected by a settlement agreement [.0111(1)]
Misc.
Any interested person may request the court to approve or
disapprove a nonjudicial settlement agreement [.0111(5)]
disapprove a nonjudicial settlement agreement [.0111(5)]
Statute (may not be viewable on
non-PDF versions of this diagram)
non-PDF versions of this diagram)
Fla.Stats. §736.04117 - Trustee's power
to invade principal (Decanting)
to invade principal (Decanting)
Requirements
Trustee has absolute power under the terms of the trust to invade principal [.04117(1)(a)]
This includes a power to invade principal not limited to specific or ascertainable purposes (such as HEMS) [.04117(1)(b)]
Term "absolute" does not have to be included [.04117(1)(b)]
Terms like "best interests," "comfort," "happiness," and "welfare" constitute an absolute power [.04117(1)(b)]
No express prohibition in the trust instrument against decanting [.04117(a)(1)]
Must be by an instrument in writing, signed and acknowledged by the trustee, and filed with the records of the first trust [.04117(2)]
Trustee must notify all qualified beneficiaries of first trust, in writing, 60 days before exercising the power to invade principal of the manner in which the trustee intends to exercise the power [.04117(4)]
Copy of proposed instrument exercising the power satisfies this notice obligation [.04117(4)]
If all qualified beneficiaries waive the notice period by signed written instrument delivered to the trustee, the trustee can exercise this power immediately [.04117(4)]
Trustee's notice does not limit the right of a beneficiary to object to the trustee's exercise of this power [.04117(4)]
Misc. Requirements
Exercise of the power to invade principal is considered an exercise of a power of appointment and is subject to s. 689.225 relating to the rule against perpetuities period [.04117(3)]
Changes Permitted
Appointment of all or part of the principal subject to the power to a trustee of another trust (the "second trust") [.04117(1)(a)1]
Can be a trust under the same trust instrument or a new trust instrument [.04117(1)(a)1]
Second trust may only include beneficiaries of first trust [.04117(1)(a)1]
but need not include all of them [.04117(1)(a)]
Second trust may not reduce any fixed income, annuity, or unitrust interest in the assets of the first trust [.04117(1)(a)2]
If the first trust qualified for the marital/charitable deduction, the second trust can not contain any provisions which, if included in the first trust, would prevent the first trust from qualifying for that deduction [.04117(1)(a)3]
Who can seek
Trustee [.04117(1)(a)]
Misc.
The exercise of the power to invade principal is not prohibited by a spendthrift clause or by a provision that prohibits amendment/revocation [.04117(5)]
There is no duty to exercise this power, nor will there be an inference of impropriety if a trustee does not exercise this power [.04117(6)]
This section does not abridge the right of a trustee who has a power of invasion to appoint property in further trust under the terms of the first trust, the code or common law [.04117(7)]
Comment- Consider moving trust to another state that has more liberal decanting mechanisms
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0412 - Nonjudicial
modification after settlor's death
modification after settlor's death
Requirements
Settlor deceased [.0412(1)]
Unanimous agreement of the trustee and all qualified beneficiaries [.0412(1)]
Trust created on or after January 1, 2001 [.0412(4)(a)]
Revocable trust treated as created when right of revocation terminates [.0412(5)]
Trust does not have a 90 year perpetuities vesting period [.04113(b)]
Can still meet this requirement with a 90 year period if trust terms expressly authorize nonjudicial modification
Trust does not have a common law "lives in being plus 21 years" perpetuities period [.04113(b)]
Can still meet this requirement with a "lives in being" period if trust terms expressly authorize nonjudicial modification
Cannot modify a trust for which a charitable deduction is allowed until all charitable interests terminate [.0412(4)(c)]
Misc. Requirements
Provisions of this section are in addition to rights under common law to modify, amend, terminate or revoke trusts [.0412(6)]
Changes Permitted
Any modification authorized under s. 736.04113(2)
Amend or change the terms of the trust, including terms governing the distribution of the trust income or principal or terms governing administration of the trust [736.04113(2)(a)]
Terminate the trust in whole or in part [736.04113(2)(b)]
Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust [736.04113(2)(c)]
Prohibit the trustee from performing acts that are permitted or required by the terms of the trust [736.04113(2)(d)]
Who can seek
Trustee and all qualified beneficiaries [.0412(1)]
Misc.
Modification is not prohibited by a spendthrift clause or by trust provision prohibiting amendment/revocation [.0412(2)]
Except as provided in .0412(2), terms of trust cannot override this section [736.0105(2)(k)]
Agreement to modify trust under this section is binding on beneficiary represented by another person under Part III [.0412(3)]
Any beneficiary (not just a qualified beneficiary) can commence a proceeding to disapprove a proposed modification [736.0410(2)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0414 - Judicial or nonjudicial
modification or termination of an uneconomic trust
modification or termination of an uneconomic trust
Nonjudicial
Modification
See discussion under Judicial Modification
Termination
Requirements
Notice to qualified beneficiaries [.0414(1)]
Trust property valued at less than $50,000 [.0414(1)]
Trustee determines that the value of the trust property is insufficient to justify the cost of administration [.0414(1)]
Changes Permitted
Trust can be terminated [.0414(1)
Upon termination, trustee must distribute the property in a manner consistent with the purposes of the trust. [.0414(3)]
Trustee can enter into agreements or make other provisions necessary to protect the interests of beneficiaries and trustee and to carry out the intent of the trust [.0414(3)]
Who can seek
Trustee [.0414(1)]
Misc.
Existence of a spendthrift provision does not make this section inapplicable unless the trust expressly says that the trustee may not terminate under this section [.0414(4)]
Does not apply to an easement for conservation or preservation [.0414(5)]
Any qualified beneficiary may commence a proceeding to disapprove a proposed termination [736.0410(3)]
Judicial
See discussion under Judicial Modification discussion of this statute
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0417 - Combination
and Division of Trusts
and Division of Trusts
Requirements
Notice to the qualified beneficiaries [.0417(1)]
Combination or division may not impair rights of any beneficiary or adversely affect achieve of the purposes of the trust [.0417(1)]
Misc. Requirements
Trusts don't have to be identical for this section to apply
the types of actions permitted under Fla.Stats. §736.0417 may exceed what are permissible from a tax standpoint. Trustees should exercise caution as tax law requirements for trust combinations and severances vary with the context.
Changes Permitted
Combine two or more trusts into a single trust [.0417(1)]
Divide a trust into two or more separate trusts [.0417(1)]
Who can seek
Trustee [.0417(1)]
Misc.
Subject to the terms of the trust, the trustee may take into considerations differences in federal tax attributes and other factors in administering the trust, in making tax elections and making distributions [.0417(2)]
Separate trusts must be treated as separate trusts for all purposes from date severance is effective [.0417(2)]
Severance date can be retroactive to before the date the trustee exercised the power [.0417(2)]
Any beneficiary (not just a qualified beneficiary) can commence a proceed to disapprove a proposed modification or termination [736.0410(2)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0602(1) Settlor Power to
Amend or Revoke Non-Irrevocable Trust
Amend or Revoke Non-Irrevocable Trust
Florida trusts executed on or after July 1, 2007 are considered revocable by the settlor if the trust does not expressly provide it is irrevocable. Fla.Stats. §736.0602(1).
The opposite rule applies for trusts executed before July 1, 2007. Macfarlane v. First Nat. Bank of Miami, 203 So.2d 57 (3rd DCA 1967).
Fla.Stats. §736.1206 - Charitable Trusts
Requirements
Trust used solely for named charitable organization(s) [.1206(1)]
Trustee does not have any discretion concerning distributions of income/principal among organizations [.1206(1)]
Consent of all named charitable organizations [.1206(1)]
Misc. Requirements
In the case of a trust that does not meet the above requirements, trustee may amend the trust to comply with Fla.Stats. §736.1204(2) with the consent of the state attorney
Changes Permitted
May amend the governing instrument to comply with the provisions of s. 736.1204(2)
So that the trust is not subject to tax under s.4942 of the Internal Revenue Code
Who can seek
Trustee
Statute (may not be viewable on non-PDF versions of this diagram)
Specific Trust Instrument Amendment Provisions
To extent not prohibited by law
Common Law
Termination
Modification
E.g., trust could be modified by settlor and beneficiaries,
even over objection of trustee, and without regard to
whether purposes of the trust have been fulfilled,
applying common law principles and notwithstanding
the statutory methods of termination.
Peck v. Peck, 133 So.3d 587 (Fla. 2d DCA February 26, 2014)
even over objection of trustee, and without regard to
whether purposes of the trust have been fulfilled,
applying common law principles and notwithstanding
the statutory methods of termination.
Peck v. Peck, 133 So.3d 587 (Fla. 2d DCA February 26, 2014)
JUDICIAL
MECHANISMS
MECHANISMS
Fla.Stats. §732.615 - Reformation of
Will to Correct Mistakes
Will to Correct Mistakes
Requirements
Clear and convincing evidence that (a) accomplishment of
testator's intent, and (b) terms of the will, were affected by
a mistake of fact or law (whether in expression or inducement)
testator's intent, and (b) terms of the will, were affected by
a mistake of fact or law (whether in expression or inducement)
Related Requirements
service of process and statutory representation compliance
Changes Permitted
Conform terms to conform to testator's intent
Who can seek
Any interested person
Misc.
in determining testator's intent, court may consider
evidence that contradicts an apparent plain meaning
of the will
evidence that contradicts an apparent plain meaning
of the will
Statute (may not be viewable on
non-PDF versions of this diagram)
non-PDF versions of this diagram)
Fla.Stats. §736.04113 - Judicial Modification of Trust
When Not Inconsistent with Settlor's Purpose
When Not Inconsistent with Settlor's Purpose
Requirements
Trust not revocable [.04113(1)]
One of these three circumstances apply:
The purposes of the trust: [.04113(1)(a)]
have been fulfilled, or
have become illegal, impossible, wasteful, or impracticable to fulfill
Because of circumstances not anticipated by the settlor,
compliance with the trust terms would defeat or
substantially impair the accomplishment of a
material purpose of the trust [.04113(1)(b)]
compliance with the trust terms would defeat or
substantially impair the accomplishment of a
material purpose of the trust [.04113(1)(b)]
A material purpose of the trust no longer exists [.04113(1)(c)]
Related Requirements
service of process and statutory representation compliance
Who can Seek
trustee or any qualified beneficiary [.04113(1)]
Changes Permitted
expressly permitted modifications: [.04113(2)]
amend or change the trust terms, including
terms governing distribution of the income
or principal, or governing administration
[.04113(2)(a)], or
terms governing distribution of the income
or principal, or governing administration
[.04113(2)(a)], or
terminate the trust in whole or in part [.04113(2)(b)], or
direct or permit the trustee to do acts that are not
authorized or that are prohibited by the terms of
the trust [.04113(2(c)], or
authorized or that are prohibited by the terms of
the trust [.04113(2(c)], or
prohibit the trustee from performing acts
that are permitted or required by the
trust terms [.04113((2)(d)]
that are permitted or required by the
trust terms [.04113((2)(d)]
limits on court
Court must consider: [.04113(3)]
terms and purposes of the trust, and
facts and circumstances surrounding the creation of the trust, and
extrinsic evidence relevant to the proposed modification, and
spendthrift provisions:
court must consider as a factor
court not precluded from modifying because of them
Misc.
Statute does not impact common law
rights to modify, amend, terminate or
revoke [.04113(5)]
rights to modify, amend, terminate or
revoke [.04113(5)]
This statute replaces Fla.Stats. §737.4031(1)
Trust provisions cannot override this statute [736.0105(j)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.04114 - Judicial construction of Trust
with federal tax provisions if 2010 Disposition
with federal tax provisions if 2010 Disposition
Requirements
trust is not revocable [.04114(1)]
disposition occurs during the applicable period
(1/1/10 through limited period in 2010)
(1/1/10 through limited period in 2010)
relating to certain stated formula, shares, deductions
and amounts relating to estate and GST taxes
and amounts relating to estate and GST taxes
Constructions permitted [.04114(1)]
define respective shares of beneficiaries
determine beneficiaries
Limits on court:
in accordance with settlor's intent
Who Can Seek
trustee or any qualified beneficiary [.04114(1)]
Misc.
Note that this is a "construction" not a "modification" statute
Trust provisions cannot override this statute [736.0105(j)]
Comment: of limited utility per requirements of a 2010 disposition
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.04115 - Judicial Modification of
Trust when in best interests of beneficiaries
Trust when in best interests of beneficiaries
Requirements
trust is not revocable [.04115(1)]
compliance with trust terms is not in
best interests of the beneficiaries [.04115(1)]
best interests of the beneficiaries [.04115(1)]
trust created on or after 1/1/01 [.04115(3)(a)]
revocable trust deemed created when
right of revocation terminates [.04115(4)]
right of revocation terminates [.04115(4)]
terms of the trust do not expressly prohibit judicial
modification, or if it does, then also: [.04115(3)(b)(2)]
modification, or if it does, then also: [.04115(3)(b)(2)]
trust does not have a 90 year perpetuities
vesting period; and [.04115(3)(b)(1)]
vesting period; and [.04115(3)(b)(1)]
trust does not have a common law "lives in being
plus 21 years" perpetuities period [.04115(3)(b)(1)]
plus 21 years" perpetuities period [.04115(3)(b)(1)]
Related Requirements
service of process and statutory
representation compliance
representation compliance
Who Can Seek
trustee or any qualified beneficiary [.04115(1)]
Changes Permitted
Same as under 04113(2) rules [.04115(1)]
limits on court
use discretion in a manner that conforms to the extent
possible with intent of settlor, taking into account
current circumstances and best interests of the beneficiaries [.04115(2(a)]
possible with intent of settlor, taking into account
current circumstances and best interests of the beneficiaries [.04115(2(a)]
Court must consider: ([.041152(b)]
terms and purposes of the trust
facts and circumstances surrounding the creation of the trust
extrinsic evidence relevant to the proposed modification
spendthrift provisions [.04115(2)(c)]
court must consider as a factor
court not precluded from modifying because of them
Misc.
.04113 reasons are not applicable [.04115(1)]
Statute does not impact common law rights to
modify, amend, terminate or revoke [.04115(5)]
modify, amend, terminate or revoke [.04115(5)]
This statute replaces Fla.Stats. §737.4031(2)
Trust provisions cannot override this statute, except
as provided under .04115(3)(b) [736.0105(j)]
as provided under .04115(3)(b) [736.0105(j)]
Statute (may not be viewable on
non-PDF versions of this diagram)
non-PDF versions of this diagram)
Fla.Stats. §736.0413 - Cy pres
judicial modification of Trust
judicial modification of Trust
Requirements
A particular charitable purpose becomes unlawful,
impracticable, impossible to achieve, or wasteful [.0413(1)]
impracticable, impossible to achieve, or wasteful [.0413(1)]
Changes Permitted
Court may modify or terminate by directing the trust property
be applied or distributed, in whole or in part [.0413(1)]
be applied or distributed, in whole or in part [.0413(1)]
Limits on court
Court must act consistent with settlor's charitable purpose [.0413(1)]
Who can seek
Settlor, trustee, or any qualified beneficiary [.0413(2)]
Misc.
Trust provisions cannot override this statute [736.0105(j)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0414 - Judicial or nonjudicial
modification or termination of an uneconomic trust
modification or termination of an uneconomic trust
Nonjudicial
See discussion under Nonjudicial Modification
Judicial
Requirements
court determination that value of trust property is
insufficient to justify the cost of administration [.0414(2)]
insufficient to justify the cost of administration [.0414(2)]
No spendthrift provision and trust clause that prohibits
termination under s. 736.0414 [.0414(4)]
termination under s. 736.0414 [.0414(4)]
Related Requirements
service of process and statutory
representation compliance
representation compliance
Changes Permitted
modify or terminate a trust [.0414(2)]
remove the trustee and appoint a different trustee [.0414(2)]
Who can seek
trustee or a qualified beneficiary [.0414(2)]
Misc.
If trust terminated, property distributed in a
manner consistent with trust purposes [.0414(3)]
manner consistent with trust purposes [.0414(3)]
Trustee may enter into agreements or make other provisions
deemed necessary or appropriate to protect beneficiary and
trustee interests and to carry out the intent and purposes of the trust [.0414(3)]
deemed necessary or appropriate to protect beneficiary and
trustee interests and to carry out the intent and purposes of the trust [.0414(3)]
Spendthrift provision does not prevent statute from operating unless
trust provision expressly providing inapplicability of this section [.0414(4)]
trust provision expressly providing inapplicability of this section [.0414(4)]
Not applicable to easements for conservation or preservation [.0414(5)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0415 - Judicial reformation
of trust to correct mistakes
of trust to correct mistakes
Requirements
clear and convincing evidence that both (a) the accomplishment of
the settlor's intent, and (b) the terms of the trust, were affected by a
mistake of fact or law (whether in expression or inducement)
the settlor's intent, and (b) the terms of the trust, were affected by a
mistake of fact or law (whether in expression or inducement)
Related Requirements
service of process and statutory representation compliance
Changes Permitted
reform trust terms to conform to settlor's intent
Who can seek
settlor or any interested person
Trustee, per Reid v. Temple Judea, 994 So2d 1146 (3rd DCA 2008),
which cites Fla. S. Comm. On Banking & Ins., CS for SB 1170 (2006)
Staff Analysis 20 (March 21, 2006)
which cites Fla. S. Comm. On Banking & Ins., CS for SB 1170 (2006)
Staff Analysis 20 (March 21, 2006)
Misc.
irrelevant that trust terms are unambiguous
in determining settlor's original intent, court may
consider evidence that contradicts an apparent
plain meaning of the instrument
consider evidence that contradicts an apparent
plain meaning of the instrument
Trust provisions cannot override this statute [736.0105(j)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0416 - Judicial modification of
Trust to Achieve Settlor's Tax Objectives
Trust to Achieve Settlor's Tax Objectives
Requirements
Modification is to achieve settlor's tax objectives
Related Requirements
service of process and statutory representation compliance
Changes Permitted
Modifications of terms to achieve settlor's tax objectives, if not contrary to settlor's probable intent
Retroactive changes permitted
Who can seek
Any interested person
Misc.
IRS respect for such modifications has to be separately determined
Trust provisions cannot override this statute [736.0105(j)]
Statute (may not be viewable on non-PDF versions of this diagram)
Common Law
Rescission
Modification or Reformation
Construction
Termination
OTHER/UNUSUAL
METHODS
METHODS
Fla.Stats. §736.0201(2) & (4) - Court
Intervention in the Administration of a Trust
Intervention in the Administration of a Trust
Who can seek
Interested person or as provided by law
Misc.
Uncertain scope of what may be obtained from
a court under this statute. See Fla.Stats. §736.0201(4).
a court under this statute. See Fla.Stats. §736.0201(4).
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.1012 - Beneficiary Consent
Usage
May allow an effective modification if beneficiaries
release trustee from liability of breach of trust, thus
freeing the trustee to act outside of the terms of the
trust. Thus, if all potentially impacted beneficiaries
consent, it may sanction a breach of trust as a practical matter.
release trustee from liability of breach of trust, thus
freeing the trustee to act outside of the terms of the
trust. Thus, if all potentially impacted beneficiaries
consent, it may sanction a breach of trust as a practical matter.
Does not directly authorize an amendment - it
is only a waiver of liability for the trustee for a breach of trust
is only a waiver of liability for the trustee for a breach of trust
May also require waiver of right to enforce a provision of the trust
Requirements
Applicable beneficiaries either consent to,
released the trustee from liability for, or
ratify, the subject breach of trust [.1012]
released the trustee from liability for, or
ratify, the subject breach of trust [.1012]
Unless:
The consent, release, or ratification was
induced by improper trustee conduct, or [.1012(1)]
induced by improper trustee conduct, or [.1012(1)]
At the time of the consent, release, or ratification,
the beneficiary did not know of his or her rights
or of the material facts [.1012(2)]
the beneficiary did not know of his or her rights
or of the material facts [.1012(2)]
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §736.0406 - Effect of fraud, duress, mistake or undue influence (Voiding)
Requirements
The creation, amendment or restatement
of a trust procured by fraud, duress, mistake
or undue influence
of a trust procured by fraud, duress, mistake
or undue influence
Effects
the trust or the part so procured is void,
and the remainder of the trust is not void
and the remainder of the trust is not void
May be applied to void a revocation of a trust
Misc.
Effective without a judicial determination?
If yes, trustee or parties act at their own
peril without a judicial determination
peril without a judicial determination
Statute (may not be viewable on non-PDF versions of this diagram)
Fla.Stats. §744.441(19) - Power of guardian to create irrevocable trusts for ward’s property
MISC
Subject to limitations periods, under applicable statutes,
rules, and common law doctrines, Including trust limitations notices
rules, and common law doctrines, Including trust limitations notices
Tax authorities may not be bound by any of the
described changes or actions for tax purposes
described changes or actions for tax purposes
The information contained herein is condensed from,
and a general summary of, legislation, Rules, and other information,
may not be up-to-date,
and should not be construed as legal advice or opinion, and is
not a substitute for the advice of counsel
and a general summary of, legislation, Rules, and other information,
may not be up-to-date,
and should not be construed as legal advice or opinion, and is
not a substitute for the advice of counsel