Fla. Stat. § 736.0407 - Commentary to Florida Trust Code
Legal Commentary on Fla. Stat. § 736.0407
Fla. Stat. § 736.0407 establishes that oral trusts are generally allowed in Florida, if the terms of said trust are established by clear and convincing evidence. In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Fourth District Court of Appeal explained what constitutes clear and convincing evidence:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established
Thus, establishing the terms of an oral trust would likely prove difficult in most situations. Therefore, oral trusts should be discouraged, even if they are generally allowed.
Despite the general rule established in Fla. Stat. § 736.0407, oral trusts are forbidden if real property is transferred into the trust. Fla. Stat. § 736.0403(2)(a).
In addition, Fla. Stat. § 736.0403 requires a trust to be in writing if the following three conditions are met:
The settlor is domiciled in Florida at the time of the trust’s creation;
The trust is revocable; and
The trust disposes of the trust property on or after the death of the settlor other than to the settlor’s estate.
If these conditions are met, then the trust must be executed “with the formalities required for the execution of a will in this state.” One of those formalities is a requirement that “[e]very will must be in writing.” Fla. Stat. § 733.502. Thus, a trust meeting the three conditions above must also be in writing.
Text of Fla. Stat. § 736.0407
Evidence of oral trust.—Except as required by s. 736.0403 or a law other than this code, a trust need not be evidenced by a trust instrument but the creation of an oral trust and its terms may be established only by clear and convincing evidence.
History of Fla. Stat. § 736.0407
Fla. Stat. § 736.0407 became law on July 1, 2007 as part of the Florida Trust Code. It has not been amended or revised since that date. The statute section was taken nearly verbatim from § 407 of the Uniform Trust Code.
This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.