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 the trustee fails to reveal that 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 the trustee's 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 the waiver;

(c)  As to any beneficiary who has released the successor trustee from the 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 that writing advises the beneficiary that, unless the beneficiary delivers the written request within 6 months after the date of acceptance, the 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.

(f)  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 this subsection 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; s. 188, ch. 2001-226.