Probate is the court-supervised process by which assets owned by a deceased person are distributed, either according to the terms of a will or according to state law, if there is no will. If all property is held in trust, probate can generally be avoided and the assets can be distributed by administration of the trust. If some or all of the decedent's property is held in a trust, the trustee must file a "Notice of Trust" with the probate court clerk in the county where the deceased person lived. This serves to put the decedent's creditors on notice that a trust exists and it advises them that they can make claims against the trust for payment.
In Florida, the duties required of a trustee vary depending on the size of the estate, the location of the assets, and the terms of the trust. However, a trustee is always required to provide notice to the beneficiaries within 60 days after the settlor's death. The notice must include basic information about the trust, as well as a statement indicating that the beneficiaries have only six months to contest the trust's administration after receiving notice. The notice must also provide the trustee's contact information and indicate to the beneficiaries that they have a right to request a copy of any trust document provision that applies to them.
Additional Trustee Responsibilities
The trustee must also obtain certified copies of the settlor's death certificate. These copies are often required by banks in combination with the trust documents for verification purposes in transferring assets held in accounts. The trustee is also required to inventory all assets and maintain them, and make a list of all debts the settlor owed. This may involve making mortgage payments and paying for upkeep on the real property. The trustee is required to settle outstanding claims against the estate before distributing any property to the beneficiaries. In making the distributions, the trustee must do so in accordance with the settlor's wishes, and follow the express terms of the trust document.
Duty of Care
As part of administering the trust, the trustee owes what is known as a fiduciary duty to the beneficiaries. He must avoid self-dealing. This means that the trustee must put the beneficiaries' interests above his own and distribute assets only according to the terms of the trust. Florida law also requires that accounting be provided to the beneficiaries at least once a year for all assets that remain in the trust, and that the trustee keep the beneficiaries reasonably informed of all actions affecting the value of trust.