In Florida trust law, few principles are more powerful—or more dangerous for trustees—than the presumption that arises when a fiduciary fails to keep proper records. The law does not forgive sloppy administration. In fact, it does the opposite: it presumes wrongdoing. This principle is deeply rooted in Florida jurisprudence and has been reaffirmed across decades of trust litigation.
The foundational case is 157 So. 512 (Fla. 1934), which stands for the now well-settled rule that a trustee who fails to keep “clear, distinct, and accurate accounts” is presumed to have mishandled the trust. The Florida Supreme Court held that in such cases, “all presumptions are against him and all obscurities and doubts are to be taken adversely to him.” The burden shifts squarely onto the trustee to affirmatively prove that each expenditure was proper. In Benbow, the trustee had failed to maintain accurate accounts and refused to convey property back to the trust beneficiary. The court found that the trustee could not claim equitable reimbursement or a lien on the property because he failed to demonstrate that the money allegedly expended was for the benefit of the trust. The presumption against him became conclusive when he failed to meet this burden.
This core doctrine was reinforced in Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980), where the probate court found a father, acting as both personal representative and guardian, had commingled trust, estate, and personal funds. The appellate court upheld a substantial surcharge against him, noting that once a fiduciary fails to maintain adequate records, the burden shifts to justify all challenged transactions. The trustee’s failure to keep proper documentation and his admission of commingling not only invoked the presumption against him but also made him personally liable for trust losses. Beck affirms that courts expect fiduciaries to operate with the same care and clarity as an express trustee, and when they fail to do so, they are treated as presumptively in breach.
This principle remains alive and well under Florida’s modern trust code, as shown in Rich v. Narog, 366 So. 3d 1111 (Fla. 3d DCA 2022). In Rich, the personal representative of an estate paid over $2.5 million in debts without any creditor having filed a timely claim, and then attempted to justify those payments through a conclusory affidavit. The court rejected the affidavit as insufficient, noting it failed to overcome the presumption of breach triggered by the unauthorized payments. Applying Florida’s updated summary judgment standard, the court emphasized that vague or unsupported trustee assertions do not raise genuine issues of fact. Instead, the fiduciary must come forward with competent, probative evidence to rebut the presumption of wrongdoing. Without it, summary judgment and surcharge are appropriate.
The same expectation applies when a trustee uses trust funds for personal purposes or fails to show that legal fees paid from trust assets were for the benefit of the trust. In Ortmann v. Bell, 100 So. 3d 38 (Fla. 2d DCA 2011), the court found that the trustee had failed to demonstrate which of her legal expenses were legitimately incurred on behalf of the trust. As a result, she was surcharged the entire amount. Even though some portion of the fees may have been proper, the trustee’s failure to maintain and present evidence of that fact led to a full monetary judgment against her. The court reaffirmed that the trustee has the burden to show each expense was necessary and for the benefit of the trust. If the records are unclear or incomplete, the trustee—not the beneficiary—bears the financial risk.
Taken together, these cases form a consistent and forceful rule: a trustee who fails to maintain complete and accurate records loses the benefit of the doubt. Courts do not require proof of fraud or theft to find a breach of trust. It is enough that the trustee cannot prove what happened to the money. Florida law imposes a strict standard on fiduciaries, and for good reason—trustees are custodians of other people’s property. If they cannot show how they used it, the law assumes they misused it. For beneficiaries, this rule is a powerful shield. For trustees, it is a stern warning: keep records, or expect to pay.
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-Brice Zoecklein,
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