Florida Trust Code

Florida Trust Law What Families and Trustees Need to Know

The Florida Trust Code is found in Florida Statutes Chapter 736. The summary below covers the sections most relevant to Florida elder law and estate planning attorneys, as well as families managing or benefiting from a trust on behalf of a loved one. This guide is not exhaustive and some sections have been omitted. It is meant for informational purposes only, as the law and its interpretation may have changed since this article was written. For a full overview of how trusts interact with Medicaid planning and long-term care, read our guide on Florida Medicaid long-term care programs and our dedicated page covering the work of a Florida estate planning attorney.

Chapter 736 Part I General Provisions and Definitions

736.0102 Scope

Chapter 736 applies to express trusts, both charitable and noncharitable, and trusts created under a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust. It does not apply to resulting or constructive trusts, business trusts providing for certificates to be issued to beneficiaries, investment trusts subject to registration under federal or state securities laws, common trust funds, or trusts that are part of a retirement plan.

What Are the Key Definitions in the Florida Trust Code?

(Selected definitions most relevant to elder law and estate planning. Some subsections have been omitted.)

Beneficiary means a person who has a present or future beneficial interest in a trust, vested or contingent, or who holds a power of appointment over trust property in a capacity other than as trustee.

Charitable Trust means a trust created for a charitable purpose described in Florida Statutes 736.1201(1).

Conservator means a person appointed by a court to manage the property of a living individual.

Discretionary Trust means a trust that gives the trustee complete discretion regarding whether and how much to distribute to the beneficiaries.

Interested Person means any person who may reasonably be expected to be affected by the outcome of the proceeding.

Irrevocable Trust means a trust that may not be revoked after its creation.

Power of Withdrawal means a presently exercisable general power of appointment other than a power exercisable only upon consent of the trustee or a person holding an adverse interest.

Qualified Beneficiary means a beneficiary who is a distributee or permissible distributee of trust income or principal, or who would be a distributee or permissible distributee if the trust terminated or the interests of the current beneficiaries terminated on the date of determination.

Revocable Trust means a trust that is revocable by the settlor.

Settlor means a person who creates or contributes property to a trust, whether the trust was created by a written instrument or otherwise.

Spendthrift Provision means a term of a trust that restricts both voluntary and involuntary transfer of a beneficiary's interest.

Trustee means an original, additional, or successor trustee.

Chapter 736 Part II Judicial Proceedings

736.0201 Role of the Court

(Selected subsections. Some have been omitted.)

The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law. A trust is not subject to continuing judicial supervision unless ordered by the court.

736.0204 Venue

Venue for trust proceedings is in the county where the trustee's principal place of administration is located, in the county of the settlor's domicile if the settlor is living, or in any county where any portion of the trust property is located.

Chapter 736 Part III Representation

736.0301 Representation Generally

(Selected subsections. Some have been omitted.)

Notice to or actions binding on one person may bind another person under the law of representation. A person may represent and bind any person whose interest is substantially identical and who is not otherwise represented.

736.0302 Representation by Holder of General Power of Appointment

To the extent there is no conflict of interest, a holder of a presently exercisable general power of appointment may represent and bind persons whose interests are subject to the power.

736.0303 Representation by Fiduciaries and Parents

(Selected subsections. Some have been omitted.)

To the extent there is no conflict of interest, a trustee may represent and bind the beneficiaries of the trust. A parent may represent and bind a minor or unborn child if no guardian or conservator of the child's property has been appointed.

Chapter 736 Part IV Creation, Validity, Modification, and Termination of Trust

736.0401 Methods of Creating a Trust

A trust may be created by any of the following.

• A transfer of property under a trust agreement
• A declaration by the owner of property that the owner holds the property as trustee
• An exercise of a power of appointment in favor of a trustee
• A valid contract to make a will or trust
• A judgment or decree that requires the trust to be administered as an express trust

736.0402 Requirements for Creation

(Selected subsections. Some have been omitted.)

A trust is created only if all of the following are met.

• The settlor has capacity to create a trust
• The settlor's intention to create the trust is indicated
• The trust has a definite beneficiary, or is a charitable trust, a trust for the care of an animal under 736.0408, or a trust for a noncharitable purpose under 736.0409
• The trustee has duties to perform
• The same person is not the sole trustee and sole beneficiary

736.0403 Trusts Created in Other Jurisdictions

A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, where the settlor was domiciled or resided at the time of creation, or where any trust property was located at the time of creation.

736.0404 Trust Purposes

A trust may be created for any lawful purpose. A trust and its terms must be for the benefit of its beneficiaries.

736.0405 Charitable Purposes

A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes beneficial to the community.

736.0406 Creation of Trust Induced by Fraud, Duress, or Undue Influence

A trust that is created as the result of fraud, duress, or undue influence is void to the extent the trust was the product of any such act.

736.0407 Evidence of Oral Trusts

The creation of an oral trust and its terms may be established by clear and convincing evidence.

736.0410 Modification or Termination of Trust

(Selected subsections. Some have been omitted.)

A trust may be modified or terminated if all beneficiaries consent and the court concludes that the modification or termination is not inconsistent with a material purpose of the trust, or if all beneficiaries and the settlor consent regardless of whether modification is inconsistent with a material purpose. A trust may also be terminated if the trust's purpose has been fulfilled or has become illegal, impossible, or wasteful.

736.0412 Modification or Termination Because of Unanticipated Circumstances

The court may modify the administrative or dispositive terms of a trust if, because of circumstances not anticipated by the settlor, compliance with those terms would defeat or substantially impair the accomplishment of the trust's purposes. The court may also modify a trust to achieve the settlor's tax objectives.

736.0414 Modification or Termination of Uneconomic Trust

After notice to the qualified beneficiaries, the trustee of a trust whose total value is less than $50,000 may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.

736.0602 Revocation or Amendment of Revocable Trust

(Selected subsections. Some have been omitted.)

Unless the terms of a trust expressly make the trust irrevocable, the trust is revocable by the settlor. A settlor may revoke or amend a revocable trust by a later will or codicil that expressly refers to the trust, by any other written instrument signed by the settlor and delivered to the trustee, or by any other method provided in the trust instrument.

736.0603 Settlor's Powers Over Revocable Trust

While a trust is revocable and the settlor has capacity, the rights of the beneficiaries are subject to the control of the settlor, and the duties of the trustee are owed exclusively to the settlor.

Chapter 736 Part VII Trustee Duties

736.0801 Duty to Administer Trust

Upon accepting a trusteeship, the trustee must administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Florida Trust Code.

736.0802 Duty of Loyalty

A trustee must administer the trust solely in the interests of the beneficiaries. A trustee must not engage in a transaction that involves the trust and another trust, or involve the trustee's own financial interests, unless the transaction is specifically authorized by the trust terms, consented to by all affected beneficiaries after fair disclosure, or approved by the court.

736.0803 Impartiality

If a trust has two or more beneficiaries, the trustee must act impartially in investing, managing, and distributing the trust property, giving appropriate regard to their respective interests.

736.0804 Prudent Investor Rule

A trustee must invest and manage trust assets as a prudent investor would, considering the purposes, terms, and distributional requirements of the trust. The trustee must pursue an overall investment strategy of risk and return objectives reasonably suited to the trust.

736.0805 Duty to Keep Trust Property Separate

A trustee must keep trust property separate from the trustee's own property and property of other trusts and must identify trust property as property of the trust.

736.0806 Delegation of Trustee Duties

A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee must exercise reasonable care and skill in selecting, establishing the scope of the delegation, and monitoring the agent. A trustee who complies with these requirements is not liable to the beneficiaries or the trust for the decisions or actions of the agent.

736.0813 Duty to Inform and Account to Beneficiaries

(Selected subsections. Some have been omitted.)

A trustee must keep the qualified beneficiaries of the trust reasonably informed about the trust and its administration. A trustee must notify qualified beneficiaries of the following.

• The existence of the trust and the trustee's name and contact information within 60 days after accepting a trusteeship of an irrevocable trust or after a revocable trust becomes irrevocable
• Their right to request a copy of the trust instrument
• Any change in the method or rate of the trustee's compensation
• A complete inventory of the trust assets upon request
• An annual accounting of the trust administration

736.0814 Discretionary Powers

The existence of discretionary power does not exempt the trustee from the duty to act in good faith and with regard to the purposes of the trust and the interests of the beneficiaries.

736.0816 Specific Powers of Trustee

(Selected subsections. Some have been omitted.)

A trustee may take the following actions.

• Collect, hold, and retain trust property
• Receive additions to the trust
• Continue or participate in the operation of any business or enterprise
• Acquire or dispose of trust property for adequate consideration
• Make ordinary or extraordinary repairs to trust property
• Pay taxes, assessments, and other expenses incurred in the collection, care, and protection of the trust property
• Employ attorneys, accountants, and agents to advise or assist the trustee
• Prosecute or defend claims by or against the trust
• Execute and deliver instruments necessary to accomplish trust administration
• On termination of the trust, exercise the powers appropriate to wind up the trust

Chapter 736 Part V Creditor Claims

736.0505 Creditor Claims Against Revocable Trusts

(Selected subsections. Some have been omitted.)

During the settlor's lifetime, the property of a revocable trust is subject to the claims of the settlor's creditors. After the settlor's death, and to the extent the settlor's probate estate is insufficient to satisfy the settlor's debts and expenses of administration, the trustee of a revocable trust must pay those amounts from trust assets. This is one reason why a revocable living trust does not provide asset protection during the settlor's lifetime and is not a Medicaid planning tool on its own. For families considering how trusts can be used effectively in Medicaid planning, read our article on essential documents for Medicaid planning in Florida.

736.0506 Spendthrift Provisions

(Selected subsections. Some have been omitted.)

A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest. A beneficiary may not transfer an interest in a trust in violation of a spendthrift provision. Except as provided in 736.0507, a creditor or assignee of the beneficiary may not reach the interest or any distribution prior to its receipt by the beneficiary.

736.0507 Exceptions to Spendthrift Provisions

A spendthrift provision does not restrict the following.

• A beneficiary's child, spouse, or former spouse who has a judgment or court order for support or maintenance
• A judgment creditor who has provided services for the protection of the beneficiary's interest in the trust
• A claim of the state or the United States to the extent federal or state law so provides

Chapter 736 Part IX Charitable Trusts

736.1201 Charitable Purposes

Charitable trusts may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes beneficial to the community. A charitable trust is valid even though there is no identifiable beneficiary.

Work With a Florida Elder Law Attorney

Understanding the Florida Trust Code is essential for families navigating long-term care planning, asset protection, and estate administration. The right trust structure can protect a loved one's assets, preserve Medicaid eligibility, and provide for family members with special needs. A generic document that does not account for Florida law can create costly problems at the worst possible time. The Florida estate planning and elder law attorneys at Elder Needs Law draft trust documents tailored to each client's goals and fully compliant with the 2026 Florida Trust Code. Contact our office to schedule a consultation.

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