How “Terms of a Trust” is Defined - Commentary to Florida Trust Code

Legal Commentary on the Definition of “Terms of a Trust”

Fla. Stat. § 736.0103(24) defines the term “terms of a trust.” The text of the subsection reads:

“Terms of a trust” means:

(a) Except as otherwise provided in paragraph (b), the manifestation of the settlor’s intent regarding a trust’s provisions as:

1. Expressed in the trust instrument; or

2. Established by other evidence that would be admissible in a judicial proceeding; or

(b) The trust’s provisions as established, determined, or amended by:

1. A trustee or trust director in accordance with applicable law;

2. Court order; or

3. A nonjudicial settlement agreement under s. 736.0111, relating to nonjudicial settlement agreements.

The most obvious terms of a trust are the words written in a trust instrument. This is what most people think of when the phrase “terms of a trust” is used. However, the Florida Trust Code includes the words of a trust instrument only insofar as those terms are a “manifestation of the settlor’s intent regarding a trust’s provisions.” If admissible evidence demonstrates that the settlor intended different trust provisions, then the settlor’s intent will override the words of the trust instrument.

The “terms of a trust” also include valid amendments of the trust by a trustee or trust director, when such an amendment is allowed by the trust terms. This is similar to the holding in Minassian v. Rachins, in which the Fourth District Court of Appeal relied on former Fla. Stat. § 736.0808(3) to conclude that a trustee or trust protector may amend the terms of a trust if the pre-amended trust terms delegated such authority to the trustee or trust protector. 152 So. 3d 719 (Fla. 4th DCA 2014). Presumably, a trustee also modifies the terms of a trust under Fla. Stat. § 736.0412.

The “terms of a trust” also include a modification of the trust terms via court order. This includes modifications made under Fla. Stat. §§ 736.04113; 736.04115; 736.0413; 736.0414; 736.0415; and 736.0416.

Finally, the “terms of a trust” include nonjudicial settlement agreements under Fla. Stat. § 736.0111.

History of the Definition of “Terms of a Trust”

In 2007, when the Florida Trust Code became law, the definition for “terms of a trust” was:

“Terms of a trust” means the manifestation of the settlor’s intent regarding a trust’s provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.

At that point, the definition was found in Fla. Stat. § 736.0103(19). The definition for “terms of trust” was amended in 2021. It has not been updated since.

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