Fla. Stat. § 736.0705 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0705

Fla. Stat. § 736.0705 establishes the process by which a trustee may resign.

At common law, a trustee was generally not permitted to unilaterally resign without court approval unless the terms of the trust provided otherwise. See Stearns v. Fraleigh, 23 So. 18 (Fla. 1897) (“The general rule, that a trustee cannot, after having accepted a trust, resign or renounce it at his pleasure, contended for by appellees, is unquestionably correct; but it is equally true that, where the instrument creating the trust empowers a trustee to resign after acceptance, a resignation in the manner pointed out by such instrument will be valid”). Florida abandoned this common law restriction in 2005, opting instead to allow trustees to resign after providing proper notice to the appropriate parties.

A trust instrument may provide methods for a trustee to resign that are not discussed in the Florida Trust Code. For example, the terms of a trust could allow for resignation upon 20 days notice instead of 30. However, according to Fla. Stat. § 736.0105(2)(o), the terms of a trust may not take away the trustee’s “right” to resign as described under Fla. Stat. § 736.0705.

A trustee’s resignation does not necessarily mean an immediate end of the trustee’s duties or liability. A trustee will likely be required to account for a final time, as accountings are due “on change of the trustee.” Fla. Stat. § 736.0813(1)(d). In addition, a resigning trustee is still responsible to deliver the trust property to the proper party. Fla. Stat. § 736.0707. Finally, a resignation does not reduce or discharge a trustee’s liability for any actions taken while acting as a fiduciary.

In Bellamy v. Langfitt, the Third District Court of Appeal held that a trustee may condition a resignation on court approval of a settlement agreement. 86 So.3d 1170, 1172 n.3 (Fla. 3d DCA 2012).

Text of Fla. Stat. § 736.0705

Resignation of trustee.—

(1) A trustee may resign in accordance with the procedure set forth in the trust instrument and upon notice to the cotrustees or, if none, to the successor trustee who has accepted the appointment, or, if none, to the person or persons who have the authority to appoint a successor trustee. Notwithstanding any provision of the terms of the trust, a trustee may also resign:

(a) Upon at least 30 days’ notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or

(b) With the approval of the court.

(2) In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.

(3) Any liability of a resigning trustee or of any sureties on the trustee’s bond for acts or omissions of the trustee is not discharged or affected by the trustee’s resignation.

History of Fla. Stat. § 736.0705

Fla. Stat. § 736.0507 became law on July 1, 2007 as part of the Florida Trust Code. In 2022, a portion was added to subsection (1) regarding the ability to resign in accordance with the procedure laid out in the trust instrument. Prior to the amendment, it could be found only at common law that a trustee may resign in accordance with the trust’s terms. The amendment makes it clear that the Florida Trust Code allows for this as well.

Fla. Stat. § 736.0705 is based on Section 507 of the Uniform Trust Code. It also resembles Fla. Stat. §737.309(1), part of the former chapter 737 of the Florida Statutes.

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