Fla. Stat. § 736.0303 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0303

Fla. Stat. § 736.0303 establishes five situations in which a trust representation may occur, but only to the extent that no relevant conflict of interest exists between the representative and the represented.

First, a guardian of the property can represent and bind a guardianship estate. Notably, this power belongs only to a guardian of the property, not a guardian of the person. If a guardian needs to represent or bind a guardianship estate, that guardian may be required by Fla. Stat. § 744.441 to seek court approval first.

Second, an agent may represent or bind a principal, assuming the agent has the authority to act in regard to the particular trust matter at hand. Most often, this will apply to an attorney at law who represents a beneficiary or other interested party to a trust. However, this could also apply to an attorney-in-fact given the appropriate authority under a power of attorney instrument.

Third, a trustee may represent and bind trust beneficiaries. However, such a representation should only occur when the trustee is dealing with parties other than the beneficiary being represented. Otherwise, the representation would likely be a conflict of interest and potentially a breach of trust. For example, the trustee should not deliver a required trust accounting to that same trustee and assert that under Fla. Stat. § 736.0301, such an accounting ought to be deemed as being delivered to the beneficiary. However, a trustee could bind trust beneficiaries when selling trust property to a third party, assuming the sale caused no conflict of interest. To determine whether a conflict of interest exists, the trustee would be wise to review the presumptive conflicts listed in Fla. Stat. § 736.0802(3).

Fourth, a personal representative of a probate estate may represent and bind “persons interested in the estate”. The phrase “persons interested in the estate” is likely a reference to “interested persons” as broadly defined in Fla. Stat. § 731.201. Thus, personal representatives may bind far more than estate beneficiaries, so long as no conflict of interest exists.

Finally, a parent may represent and bind that parent’s minor children and unborn descendants. However, this is only the case if a guardian of the property has not been appointed. If such an appointment has been made, then the guardian of the property will need to represent the child under subsection (1).

Text of Fla. Stat. § 736.0303

Representation by fiduciaries and parents.—To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:

(1) A guardian of the property may represent and bind the estate that the guardian of the property controls.

(2) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.

(3) A trustee may represent and bind the beneficiaries of the trust.

(4) A personal representative of a decedent’s estate may represent and bind persons interested in the estate.

(5) A parent may represent and bind the parent’s unborn child and the unborn descendants of such unborn child, or the parent’s minor child and the minor or unborn descendants of such minor child, if a guardian of the property for the unborn child, minor child, or such child’s descendants has not been appointed.

History of Fla. Stat. § 736.0303

Fla. Stat. § 736.0303 became law in 2007 and was updated in 2022. Prior to the update, subsection (5) read:

(5) A parent may represent and bind the parent’s unborn child, or the parent’s minor child if a guardian of the property for the minor child has not been appointed.

Fla. Stat. § 736.0303 was taken from § 303 of the Uniform Trust Code with minor revisions.

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.