Trust Representation Under Florida’s Trust Code
By: Barry E. Haimo, Esq.
January 22, 2021
When most people in our state think of a “representative,” they likely imagine a personal representative — the individual who handles another’s affairs after their death. By law, this can be a person that the decedent chooses themselves or, if they have not named anyone, an individual appointed by the court.
But did you know that creating a trust also involves a designated representative in Florida?
How Trust Representation Works
Trust representation essentially entails nominating a specific person or persons in the trust instrument itself “to represent and bind a beneficiary and receive any notice, information, accounting, or report” on their behalf.
Alternatively, it’s also possible to nominate someone in the trust document to choose who the designated representative or representatives will be. The only real caveat? This nominating individual may not be a trustee of the trust in question.
Of course, those are just the basics of how trust representation is defined under Florida’s Trust Code, which goes into further detail regarding how representation works and breaks down how the law applies to various groups of people who could potentially hold representative positions. These include, for example, fiduciaries, parents, someone who has “substantially identical interest,” and the “holder of power of appointment.
Below, you can read the sections of Florida’s Trust Code that deal with representation in their entirety. Like most legal documents, the below statutes can at times be dense and confusing — especially to anyone not used to wading through legalese.
If you have questions about how trust representation works or are considering creating a trust in Florida, please do not hesitate to reach out. When you choose Haimo Law to handle your estate planning needs, you get a partner who not only strives to ensure you and your loved ones the best possible future, but also demystify the process — so that you can be an active participant in passing on the fruits of the life you’ve worked so hard to build.
Florida’s Trust Code: Representation
Below, you’ll find a breakdown of the different parts of our Trust Code that deal with representation as well as the actual text of the code.
736.0301 Representation; basic effect.
736.0302 Representation by holder of power of appointment.
736.0303 Representation by fiduciaries and parents.
736.0304 Representation by person having substantially identical interest.
736.0305 Appointment of representative.
736.0306 Designated representative.
736.0301 Representation; basic effect.—
(1) Notice, information, accountings, or reports given to a person who may represent and bind another person under this part may serve as a substitute for and have the same effect as notice, information, accountings, or reports given directly to the other person.
(2) Actions taken by a person who represents the interests of another person under this part are binding on the person whose interests are represented to the same extent as if the actions had been taken by the person whose interests are represented.
(3) Except as otherwise provided in s. 736.0602, a person under this part who represents a settlor lacking capacity may receive notice and give a binding consent on the settlor’s behalf.
(4) A trustee is not liable for giving notice, information, accountings, or reports to a beneficiary who is represented by another person under this part, and nothing in this part prohibits the trustee from giving notice, information, accountings, or reports to the person represented.
736.0302 Representation by holder of power of appointment.—
(1) The holder of a power of appointment may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
(2) The takers in default of the exercise of a power of appointment may represent and bind persons whose interests, as permissible appointees, are subject to the power.
(3) Subsection (1) does not apply to:
(a) Any matter determined by the court to involve fraud or bad faith by the trustee; or
(b) A power of appointment held by a person while the person is the sole trustee.
(4) As used in this section, the term “power of appointment” does not include a power of a trustee to make discretionary distributions of trust property.
736.0303 Representation by fiduciaries and parents.—To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A guardian of the property may represent and bind the estate that the guardian of the property controls.
(2) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.
(3) A trustee may represent and bind the beneficiaries of the trust.
(4) A personal representative of a decedent’s estate may represent and bind persons interested in the estate.
(5) A parent may represent and bind the parent’s unborn child, or the parent’s minor child if a guardian of the property for the minor child has not been appointed.
736.0304 Representation by person having substantially identical interest.—Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.
736.0305 Appointment of representative.—
(1) If the court determines that an interest is not represented under this part, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. If not precluded by a conflict of interest, a representative may be appointed to represent several persons or interests.
(2) A representative may act on behalf of the individual represented with respect to any matter arising under this code, whether or not a judicial proceeding concerning the trust is pending.
(3) In making decisions, a representative may consider general benefits accruing to the living members of the represented individual’s family.
736.0306 Designated representative.—
(1) If specifically nominated in the trust instrument, one or more persons may be designated to represent and bind a beneficiary and receive any notice, information, accounting, or report. The trust instrument may also authorize any person or persons, other than a trustee of the trust, to designate one or more persons to represent and bind a beneficiary and receive any notice, information, accounting, or report.
(2) Except as otherwise provided in this code, a person designated, as provided in subsection (1) may not represent and bind a beneficiary while that person is serving as trustee.
(3) Except as otherwise provided in this code, a person designated, as provided in subsection (1) may not represent and bind another beneficiary if the person designated also is a beneficiary, unless:
(a) That person was named by the settlor; or
(b) That person is the beneficiary’s spouse or a grandparent or descendant of a grandparent of the beneficiary or the beneficiary’s spouse.
(4) No person designated, as provided in subsection (1), is liable to the beneficiary whose interests are represented, or to anyone claiming through that beneficiary, for any actions or omissions to act made in good faith.
Originally published on 3/31/13. Updated on 1/22/21.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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