Amending a Florida Trust

By David Carnes

A trust is an instrument that allows one party, known as the settlor, to contribute assets to the trust and to name another party, known as the trustee, to administer them for the benefit of named beneficiaries. Trusts are governed by state law, and Florida's trust code can be found in Chapter 736 of the Florida Statutes. The procedure for amending a trust depends on whether the trust is revocable or irrevocable.

A trust is an instrument that allows one party, known as the settlor, to contribute assets to the trust and to name another party, known as the trustee, to administer them for the benefit of named beneficiaries. Trusts are governed by state law, and Florida's trust code can be found in Chapter 736 of the Florida Statutes. The procedure for amending a trust depends on whether the trust is revocable or irrevocable.

Revocability

The settlor can revoke a revocable trust at any time and for any reason. By contrast, the legal grounds for revoking an irrevocable trust are limited. Under Florida law, a trust is automatically treated as revocable unless it is created by the terms of a will, or unless the trust deed that established the terms of the trust specifically states that it is irrevocable.

Divorce is never easy, but we can help. Learn More

Amending a Revocable Living Trust

The settlor may amend a revocable living trust unless the terms of the trust deed specifically forbid it. If the trust deed specifies a method for amending the trust, the settlor must either use that method or revoke the trust and create a new trust containing the amended terms. If the trust deed does not specify a method for amending the trust, the settlor may amend the trust by any method "manifesting clear and convincing evidence of the settlor’s intent," such as by sending an amendment letter to the trustee or appending an amendment statement to the trust deed.

Amending an Irrevocable Living Trust

There are two main ways to amend an irrevocable living trust: judicial and non-judicial. A court may issue an order amending an irrevocable living trust based on certain legal grounds such as a term in the trust deed that does not reflect the settlor's true intentions, or the occurrence of circumstances not foreseen by the settlor. If the trust deed sets out a method for amending the trust, such as the consent of a majority of the beneficiaries, that method may be used even over the settlor's objections.

Testamentary Trusts

A testamentary trust is created by the terms of a will. Since the trust isn't created until the settlor dies, a testamentary trust is irrevocable by definition. The settlor can modify his will at any time before he dies; however, this isn't considered a modification of the trust because the trust hasn't been created yet. After the settlor dies, the trustee and the "qualified" beneficiaries may unanimously agree to amend a testamentary trust. The term "qualified beneficiary" excludes certain types of contingent beneficiaries, such as beneficiaries who have not been born yet -- "Helen's first-born child", for example, if Helen is childless when the settlor dies -- so that their failure to consent will not stop the living beneficiaries from amending the trust. The definition of "qualified beneficiary" can be found in the definitions section of the Florida Trust Code.

Divorce is never easy, but we can help. Learn More
Tennessee Law on a Living Trust

References

Related articles

Living Trusts in Michigan

A trust is a vehicle for holding assets. In the United States, trusts are governed by state law. Although the Michigan Trust Code, found in the Estates and Protected Individuals Code, includes certain distinctive features, the basic principles of Michigan trust law are similar to elsewhere in the United States.

Changes to the Beneficiaries in a Living Trust in California After One Parent Dies

One advantage of creating a living trust is the ability to amend it to accommodate a change in circumstances. In California, a trust can be amended unless it provides otherwise or the person who has the power to amend the trust is rendered legally incompetent. When parents create a living trust, the power to amend the trust may be limited by the terms of the trust document after one parent dies. If the trust can be amended, it is important to follow the amendment instructions found within the trust, or a beneficiary could later challenge that amendment.

How Do You Remove the Executor of a Living Trust?

The executor of a living trust, normally known as the trustee, is vested with the power to administer trust assets on behalf of the trust beneficiaries in conformity with the terms of the trust deed. The ease with which he can be removed from his position depends on a number of factors, including whether the trust is revocable or irrevocable.

Get Divorced Online

Related articles

How to Break an Irrevocable Trust

Two types of trusts are possible: a revocable trust and an irrevocable trust. Although the grantor can unilaterally ...

North Carolina Law on Irrevocable Living Trusts

In North Carolina, irrevocable living trusts can be established during a person's lifetime, often for estate planning ...

Amending a Living Trust in California

A revocable living trust establishes a plan for trust assets that provides payment to the trust's beneficiaries. A ...

Amending an Irrevocable Trust Agreement & Uniform Trust Code

Trust law varies based on the state where the trust is located. The Uniform Trust Code (UTC) is a proposed law meant to ...

Browse by category