We have discussed the use of trusts several times previously in this space, including the reasons that someone might want to include a trust as part of his or her comprehensive estate plan. But, how does one go about creating a trust in Florida? After all, having a trust is only useful if it can be legally enforced. There are a few requirements set out in Florida law with regard to trust creation.
Florida Statutes 736.0401 and 736.0402 provide the basic legal framework upon which trusts are built. They set out the methods and requirements for the creation of trusts. The main way that a trust is created is that a person who owns property transfers that property to another person, with the understanding that the person receiving the property is receiving it as a trustee. This can be done while the owner is living or by the action of a will or other legal process upon the owner’s death. The owner can also declare that he is holding the designated property as a trustee, or use an appointment power to appoint someone else as trustee.
While that may seem simple enough, there are some requirements that must be met for the law to recognize the creation of the trust. Firstly, the owner must have capacity and intent to create a trust. And secondly, the trust must have a beneficiary or be a charitable trust, a trust for the care of an animal living during the owner’s life, or established for a non-charitable purpose enforceable for only 21 years, and the trustee must be assigned duties. Lastly, the same person cannot be the only beneficiary as well as the only trustee. It should be noted that a “definite beneficiary” is one that can be be determined either in the present or future, subject to any application of some complicated legal concepts beyond the scope of this article.
So, those are the very basic rules for formation of a trust in Florida. The process, of course, can get much more complicated depending on the type of trust being created and what it is supposed to accomplish. If you have questions about a specific situation, you may wish to think about directing them to an experienced estate planning attorney.