Trusts are great estate planning tools that often involve the use of a pour over will in an attempt to avoid the probate process. While this can be beneficial from an estate planning point of view, trusts can also be abused or simply vehicles that a potential wrongdoer uses to avoid the probate process altogether. Generally, similar to a Will contest, the validity of a Trust can be challenged by several key statutory reasons. The basis for the revocation of a trust is provided in Fla. Stat. 736.0406 which provides:
Unlike will contests, Trust litigation is a separate legal action that is brought independently of the Probate Court. Fla. Stat. 736.0201 provides:
Except as provided in subsections (5) and (6) and s. 736.0206, judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure.
This means that a dispute regarding the validity of a Trust document is a separate lawsuit brought outside of the probate administration or probate proceedings of an estate.
Trust assets must be managed by the trustee for the best interests of the beneficiaries. A violation of this obligation by the trustee creates a cause of action for a breach of trust. This basic concept is codified in Florida Law under Fla. Stat. 736.1001 which provides: (1) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust. (2) To remedy a breach of trust that has occurred or may occur, the court may:
Damages to the successful beneficiary include a repayment of damages done to the proper trust beneficiaries and/or a disgorgement of any profits realized by the wrongdoer for the breach.