The Florida Senate

737.306  Personal liability of trustee.--

(1)(a)  Unless otherwise provided in the contract, a trustee is not personally liable on contracts, except contracts for attorneys' fees, properly entered into in the trustee's fiduciary capacity in the course of administration of the trust estate unless he or she fails to reveal his or her representative capacity and identify the trust estate in the contract.

(b)  A trustee is personally liable for obligations arising from ownership or control of property of the trust estate or for torts committed in the course of administration of the trust estate only if the trustee is personally at fault.

(c)  Claims based on contracts, except contracts for attorneys' fees, entered into by a trustee in his or her fiduciary capacity, on obligations arising from ownership or control of the trust estate, or on torts committed in the course of trust administration may be asserted against the trust estate by proceeding against the trustee in his or her fiduciary capacity, whether or not the trustee is personally liable.

(2)  Issues of liability between the trust estate and the trustee individually may be determined in a proceeding for accounting, surcharge, or indemnification, or in any other appropriate proceeding.

(3)  A successor trustee is not personally liable for any action taken or omitted to be taken by any prior trustee; nor does any successor trustee have a duty to institute any action against any prior trustee, or file any claim against any prior trustee's estate, for any of the prior trustee's acts or omissions as trustee under any of the following circumstances:

(a)  The successor trustee succeeds a trustee who was also the grantor of a trust that was revocable during the time that the grantor served as trustee;

(b)  As to any beneficiary who has waived any accounting required by s. 737.303, but only as to the periods included in such waiver;

(c)  As to any beneficiary who has released the successor trustee from such duty to institute any action or file any claim;

(d)  As to any person who is not a beneficiary within the meaning of s. 737.303(4)(b); or

(e)  As to any beneficiary described in s. 737.303(4)(b):

1.  If a super majority of the reasonably ascertainable current income or principal beneficiaries described in s. 737.303(4)(b)1. and a super majority of the reasonably ascertainable remainder beneficiaries described in s. 737.303(4)(b)2. have released the successor trustee;

2.  If the beneficiary has not delivered a written request to the successor trustee to institute an action or file a claim against the prior trustee within 6 months after the date of the successor trustee's acceptance of the trust, if the successor trustee has notified the beneficiary in writing of its acceptance in accordance with s. 737.303(1) and such writing advises the beneficiary that, unless the beneficiary delivers such written request within 6 months after the date of acceptance, his or her right to proceed against the successor trustee will be barred pursuant to this section; or

3.  For any action or claim that the beneficiary is barred from bringing against the prior trustee.

(4)(a)  Two years after the death of a settlor, neither a trust described in s. 733.707(3) as established by the settlor, the trustee of the trust, nor any beneficiary may be held liable for any claim or cause of action against the settlor by a creditor who seeks to recover from the trust, trustee, or beneficiary.

(b)  This subsection does not apply to a creditor who has timely filed a claim against the settlor's estate under s. 733.702 within 2 years after the settlor's death and whose claim has not been paid or otherwise disposed of, even if the settlor's estate proceedings have been closed or otherwise completed.

(c)  This subsection does not affect the lien of a duly recorded mortgage or security interest or the right to foreclose and enforce the mortgage or lien.

(5)  For the purposes of this section, a super majority of beneficiaries means at least two-thirds in interest of the beneficiaries if the interests of the beneficiaries are reasonably ascertainable; otherwise, it means at least two-thirds in number of the beneficiaries. A release or waiver under this section may be exercised by a legal representative or natural guardian of the beneficiary without the filing of any proceeding or approval of any court. Nothing in subsection (3) affects any liability of the prior trustee or the right of the successor trustee or any beneficiary to pursue an action or claim against the prior trustee.

History.--s. 1, ch. 74-106; s. 7, ch. 75-221; s. 8, ch. 77-344; s. 2, ch. 86-248; s. 8, ch. 95-401; s. 1040, ch. 97-102; s. 2, ch. 99-352.