Resigning as a Florida trustee: the 30 days' notice, the hand-off, and what does not end

The two ways to resign

Under §736.0705(1), a trustee may resign upon at least 30 days' notice to the qualified beneficiaries, the settlor if living, and all cotrustees, or with the approval of the court. The notice route needs no court and no reason; the court route is for a trust whose beneficiaries cannot be found or whose instrument makes notice impractical, and it lets the court impose conditions. A trust instrument may also provide its own method, and a trustee who follows it has resigned.

The notice is a dated writing sent in a way the trustee can prove, naming the effective date at least 30 days out. Some trustees also sign a written acceptance of the successor's appointment with it, so that the hand-off is one document.

Who takes over

Section 736.0704 fills a vacancy in a noncharitable trust in order: by the person named or designated in the trust to act as successor; otherwise by a person appointed by unanimous agreement of the qualified beneficiaries; otherwise by a person the court appoints. A resigning trustee who wants the transition to be short reads the succession clause before sending notice and, where the trust names nobody, opens the conversation with the beneficiaries at the same time.

What does not end on the effective date

Section 736.0707 keeps a resigning trustee's duties alive until the property is delivered: the former trustee continues to have the duties of a trustee and the powers necessary to protect the trust property until it is delivered to a successor trustee or another person entitled to it, and must then deliver the property and the records within a reasonable time. Resignation ends the authority to make new decisions; it does not end the obligation to keep the insurance in force and the accounts secure for the weeks in between.

Resignation also does not release the trustee for the past. A change of trustee is one of the three occasions for a trust accounting under §736.0813(1)(d), and the departing trustee's final accounting, delivered to the qualified beneficiaries with a limitation notice under §736.1008 if the trustee wants the six-month bar, is the document that closes the trustee's own exposure. A successor who knows of a predecessor's breach has a duty to pursue it (§736.0812), so the accounting is read.

Compensation and expenses on the way out

The resigning trustee is paid for the work done under §736.0708 and reimbursed for expenses properly incurred under §736.0709, through the final accounting; the successor's compensation begins when the successor accepts. A trustee who resigns mid-task — in the middle of a sale, a tax year or a dispute — does the beneficiaries a service by finishing the task or by documenting exactly where it stands for the successor.

When resignation is not the answer

A trustee who resigns to avoid a beneficiary's complaint has not avoided it; the accounting and the complaint follow the trustee out. A trustee who resigns because the job is too large may instead delegate under §736.0807, employ agents under §736.0816, or, where the instrument allows, appoint a cotrustee. And a trustee whose real problem is a conflict of interest on one decision can often step aside for that decision alone, by a court order or a nonjudicial settlement agreement under §736.0111, without leaving the trusteeship.

שאלות נפוצות