How “Trust Instrument” is Defined - Commentary to Florida Trust Code

Legal Commentary on the Definition of “Trust Instrument”

Fla. Stat. § 736.0103(26) defines the term “trust instrument” The text of the subsection reads:

“Trust instrument” means an instrument executed by a settlor that contains terms of the trust, including any amendments to the trust.

Thus, a trust instrument is a writing which contains trust terms. The statute explicitly includes trust amendments in this term, which indicates that amendments are part of the trust instrument itself (and not separate documents). However, trust modifications are not explicitly included within the definition.

The definition also requires that the settlor execute the trust instrument. Thus, a trust instrument does not include trust terms established by some means other than execution by the settlor. For example, if the terms of a trust were modified under either Fla. Stat. § 736.0412 or Fla. Stat. § 736.0111 without the involvement of the trust settlor, the trust instrument itself would remain the same. Thus, a trust instrument will always contain at least some of the terms of the trust, but there may also be trust terms which are not contained within the trust instrument itself.

History of the Definition of “Trust Instrument”

The term “trust instrument” has been consistently defined since the Florida Trust Code took effect in 2007. However, the placement of the definition has changed multiple times. For example, the term was originally found in Fla. Stat. § 736.0103(20).

The definition is taken almost verbatim from the definition of “trust instrument” found in § 103(19) 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.