Fla. Stat. § 736.08125 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.08125

Fla. Stat. § 736.08125 protects successor trustees from being liable for the actions of former trustees. Thus, you cannot hold a successor trustee personally liable for a breach of trust committed by a prior trustee. Trust assets may be available as compensation (and the former trustee could still be personally liable), but the current trustee cannot be made liable for the actions of a predecessor. However, an exception may be made in cases where the successor trustee participated in the breach of trust committed by the former trustee. See McCormick v. Cox, 118 So. 2d 980, 988 (Fla. 3d DCA 2013) (holding that precluding a successor trustee from being appointed was appropriate due to the successor trustee’s “knowledge of, or acquiescence in, the breaches of duty at issue in the lawsuit”).

Fla. Stat. § 736.08125 also provides six circumstances under which a successor trustee has no duty to institute a legal action against a prior trustee. However, absent one of these circumstances being present, the successor trustee would have a duty to pursue the action under Fla. Stat. § 736.0811. Thus, the safer course of action will generally be to pursue any claim available to the trust.

Text of Fla. Stat. § 736.08125

Protection of successor trustees.—

(1) A successor trustee is not personally liable for actions taken by any prior trustee, nor does any successor trustee have a duty to institute any proceeding against any prior trustee, or file any claim against any prior trustee’s estate, for any of the prior trustee’s actions as trustee under any of the following circumstances:

(a) As to a successor trustee who succeeds a trustee who was also the settlor of a trust that was revocable during the time that the settlor served as trustee;

(b) As to any beneficiary who has waived any accounting required by s. 736.0813, but only as to the periods included in the waiver;

(c) As to any beneficiary who has released the successor trustee from the duty to institute any proceeding or file any claim;

(d) As to any person who is not an eligible beneficiary; or

(e) As to any eligible beneficiary:

1. If a super majority of the eligible beneficiaries have released the successor trustee;

2. If the eligible beneficiary has not delivered a written request to the successor trustee to institute an action or file a claim against the prior trustee within 6 months after the date of the successor trustee’s acceptance of the trust, if the successor trustee has notified the eligible beneficiary in writing of acceptance by the successor trustee in accordance with s. 736.0813(1)(a) and that writing advises the beneficiary that, unless the beneficiary delivers the written request within 6 months after the date of acceptance, the right to proceed against the successor trustee will be barred pursuant to this section; or

3. For any action or claim that the eligible beneficiary is barred from bringing against the prior trustee.

(2) For the purposes of this section, the term:

(a) “Eligible beneficiaries” means:

1. At the time the determination is made, if there are one or more beneficiaries as described in s. 736.0103(19)(c), the beneficiaries described in s. 736.0103(19)(a) and (c); or

2. If there is no beneficiary as described in s. 736.0103(19)(c), the beneficiaries described in s. 736.0103(19)(a) and (b).

(b) “Super majority of eligible beneficiaries” means at least two-thirds in interest of the eligible beneficiaries if the interests of the eligible beneficiaries are reasonably ascertainable, otherwise, at least two-thirds in number of the eligible beneficiaries.

(3) Nothing in this section affects any liability of the prior trustee or the right of the successor trustee or any beneficiary to pursue an action or claim against the prior trustee.

Cases Citing Fla. Stat. § 736.08125

Freeman v. Berrin, 352 So.3d 452 (Fla. 2d DCA 2022)

In Freeman v. Berrin, the Second District Court of Appeal made the following comment about Fla. Stat. § 736.08125:

Section 736.08125 provides that successor trustees are not personally liable for actions taken by prior trustees and do not have a duty to institute claims against a prior trustee or the prior trustee's estate for the prior trustee's actions under certain circumstances.

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