In a trust, the trust maker (also referred to as “trustor” or “settlor”) transfers the title of assets to a trustee for the benefit of one or multiple beneficiaries. The trustee holds nominal ownership over the assets held in the trust while being responsible for administering them.
When should you choose a successor trustee in Florida? Click here to find out.
Trustee vs. Successor Trustee – Understanding the Difference
There are two types of trusts in Florida – revocable trusts and irrevocable trusts. Irrevocable trusts cannot be modified, amended, or revoked without court intervention. Once signed into existence, an irrevocable trust instrument must remain as it is, including:
- The assets transferred to the trust
- The individual or entity designated as trustee
- The individuals designated as beneficiaries
- The terms and instructions defined by the trustor
Revocable trusts offer more flexibility, as it is possible to modify, amend, or revoke the provisions in a revocable trust instrument. In many cases, the trustor can designate him or herself as the trust’s trustee.
This type of arrangement permits the trustor to waive nominal ownership of the assets held in the trust while maintaining control over them up until his or her passing. In such cases, it is fundamental to designate a successor trustee.
Once the trustor dies, the successor trustee will immediately assume control of the assets held in the trust to administer, execute, and distributed them according to the provisions in the trust instrument. As provided by Florida Statutes §736.0704 (1), “a vacancy in a trusteeship occurs if:
- A person designated as trustee declines the trusteeship
- A person designated as trustee cannot be identified or does not exist
- A trustee resigns
- A trustee is disqualified or removed
- A trustee dies, or
- A trustee is adjudicated to be incapacitated”
Florida Statutes §736.0704 (3) specifies that “a vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:
- By a person named or designated pursuant to the terms of the trust to act as successor trustee
- By a person appointed by unanimous agreement of the qualified beneficiaries
- By a person appointed by the court”
A trustor’s failure to designate a successor trustee may result in the appointment of someone that would not necessarily satisfy his or her wishes upon death.
When Should You Choose a Successor Trustee in Florida? – The Verdict
The successor trustee is the individual or entity who assumes control over trust when the original trustee (usually the trustor) has died or become incapacitated. The best approach is to designate a successor trustee at the trust’s drafting and execution process.
Please note that naming a successor trustee requires attention to detail, as this position must not be available for anyone. A trustee has access to detailed information about the trustor’s assets and personal details of the beneficiaries.
Failing to designate a reliable successor trustee can jeopardize the trust’s purpose and expose extremely valuable information to unnecessary risks.