Trustee Removal in Miami, Florida

A trustee occupies a position of extraordinary responsibility. When a trustee fails to fulfill their duties, mismanages trust assets, or acts contrary to the interests of beneficiaries, Florida law provides a mechanism to remove that trustee and replace them with someone who will administer the trust properly. Trustee removal is governed by F.S. § 736.0706 of the Florida Trust Code, which sets forth the grounds and procedures for removing a trustee through court action.

At the Law Offices of Albert Goodwin, PA, we represent beneficiaries, co-trustees, and other interested parties seeking the removal of a trustee in Florida. We also defend trustees against removal petitions when the allegations are unfounded. Whether you need to initiate a removal proceeding or respond to one, our firm provides the focused legal guidance required to protect your interests in trust litigation matters.

Grounds for Trustee Removal Under F.S. § 736.0706

Florida does not permit the removal of a trustee simply because beneficiaries are unhappy or disagree with the trustee's decisions. The Florida Trust Code establishes specific grounds that must be proven before a court will order removal. Under F.S. § 736.0706, a court may remove a trustee if any of the following grounds are established:

Breach of Trust

A trustee who has committed a serious breach of fiduciary duty may be removed from their position. A breach of trust occurs when the trustee violates any duty owed to the beneficiaries, including the duty of loyalty, the duty of impartiality, the duty to act prudently in investing and managing trust assets, and the duty to keep beneficiaries reasonably informed. Common examples of breach of trust include self-dealing, commingling trust funds with personal assets, making imprudent investments, and failing to provide accountings to beneficiaries as required by law.

Lack of Cooperation Among Co-Trustees

When a trust has multiple trustees, those co-trustees are generally required to act by unanimous agreement or majority decision, depending on the trust terms and applicable law. If co-trustees cannot cooperate with each other to the point that it impairs the effective administration of the trust, the court may remove one or more of the co-trustees. This ground recognizes that persistent conflict among co-trustees ultimately harms the beneficiaries, regardless of which co-trustee is primarily at fault.

Unfitness, Unwillingness, or Persistent Failure to Administer

A trustee may be removed if the trustee is unfit, unwilling, or has persistently failed to administer the trust effectively. Unfitness can arise from a variety of circumstances, including the trustee's incapacity, criminal conduct, substance abuse, or a demonstrated inability to manage financial affairs. Unwillingness refers to a trustee who simply refuses to carry out their duties or who has abandoned their responsibilities. Persistent failure to administer may include chronic failure to file accountings, failure to make required distributions, failure to respond to beneficiary inquiries, or a pattern of neglect in managing trust assets.

Substantial Change in Circumstances

The court may remove a trustee when there has been a substantial change in circumstances that makes removal in the best interests of the beneficiaries. This is a broad ground that gives the court flexibility to address situations that do not fit neatly into the other enumerated categories. A substantial change in circumstances might include the trustee relocating to a distant jurisdiction, a significant deterioration in the relationship between the trustee and the beneficiaries, or a fundamental change in the nature or complexity of the trust that renders the current trustee inadequate for the role.

Removal Requested by All Qualified Beneficiaries

Under F.S. § 736.0706, the court may also remove a trustee if all of the qualified beneficiaries request removal, the court finds that removal is in the best interests of all beneficiaries, and removal is not inconsistent with a material purpose of the trust. This ground differs from the others in that it does not require proof of trustee misconduct. However, it is not automatic—the court retains discretion to deny the removal request if it determines that removal would undermine the settlor's intent or that the current trustee is best suited to carry out the purposes of the trust.

Who Can Petition for Trustee Removal

Under the Florida Trust Code, a petition for removal of a trustee may be filed by a co-trustee, a beneficiary, or any other interested person. In practice, trustee removal petitions are most commonly brought by beneficiaries who believe the trustee is mismanaging the trust or acting in their own self-interest rather than the interests of the trust beneficiaries. Co-trustees may also petition for removal when a fellow co-trustee's conduct or lack of cooperation is hindering the proper administration of the trust.

The term “interested person” under Florida law is defined broadly and may include creditors of the trust, guardians of beneficiaries, and other individuals who have a legitimate interest in the administration of the trust. However, a person seeking removal must demonstrate standing—that is, they must show that they have a sufficient connection to the trust to bring the petition before the court.

The Legal Process for Removing a Trustee in Florida

Removing a trustee through the courts is a formal legal proceeding that follows established procedural requirements. The process generally unfolds as follows:

Filing the Petition

The removal process begins with the filing of a petition in the circuit court that has jurisdiction over the trust. In Florida, trust matters are typically handled by the probate division of the circuit court. The petition must identify the trust, the trustee sought to be removed, the petitioner's standing, and the specific grounds for removal supported by factual allegations. The petition should be supported by as much evidence as possible, including trust documents, correspondence, financial records, and any other documentation that demonstrates the trustee's misconduct or unfitness.

Burden of Proof

The burden of proof in a trustee removal proceeding falls on the petitioner—the party seeking removal. The petitioner must demonstrate to the court, by a preponderance of the evidence, that one or more of the statutory grounds for removal exist. This means that the petitioner must show that it is more likely than not that the trustee has committed a breach of trust, is unfit, or that one of the other grounds under F.S. § 736.0706 is satisfied. Courts do not remove trustees lightly, and the petitioner should be prepared to present substantial evidence in support of their claims.

The Court Proceeding

Once the petition is filed, the trustee must be served and given an opportunity to respond. The trustee may contest the removal by filing a response that disputes the factual allegations or argues that the grounds for removal have not been met. The case will proceed through discovery, during which both parties exchange documents and take depositions. Florida courts frequently require the parties to participate in mediation before the matter is set for an evidentiary hearing or trial. If the matter cannot be resolved through mediation or settlement, the court will hold a hearing at which both sides present evidence and argument, and the judge will render a decision.

Appointment of a Successor Trustee

If the court grants the removal petition, the next step is the appointment of a successor trustee. The trust instrument itself may designate a successor trustee, and in that case the court will typically honor the settlor's choice unless there is a reason not to do so. If the trust does not name a successor, or if the named successor is unable or unwilling to serve, the court may appoint a successor trustee. The court will consider the best interests of the beneficiaries and the purposes of the trust when selecting a successor. In some cases, the court may appoint a professional or corporate trustee, particularly when the trust involves complex assets or when family dynamics make it inadvisable to appoint another family member.

Voluntary Resignation vs. Involuntary Removal

Not every trustee departure requires a contested court proceeding. In many situations, a trustee may voluntarily resign from their position. Under F.S. § 736.0705, a trustee may resign by providing at least 30 days' written notice to the qualified beneficiaries, the settlor (if living), and any co-trustees. The trust instrument may also include its own resignation provisions that must be followed.

A voluntary resignation is generally preferable to an involuntary removal proceeding because it avoids the expense, delay, and acrimony of litigation. In some cases, when a beneficiary raises concerns about a trustee's conduct, the trustee may agree to resign voluntarily rather than face a removal proceeding. This can be an effective strategy for resolving disputes more quickly and preserving family relationships. However, a resignation does not shield the outgoing trustee from liability for misconduct that occurred during their tenure. Beneficiaries may still pursue claims for breach of fiduciary duty even after the trustee has stepped down.

Involuntary removal, by contrast, is necessary when the trustee refuses to resign despite clear grounds for removal, or when the trustee's conduct is so egregious that immediate judicial intervention is required. Involuntary removal carries greater consequences for the trustee, including potential findings of misconduct that may affect the trustee's entitlement to compensation and their personal liability for losses caused to the trust.

Practical Considerations During Removal Proceedings

Protecting the Trust During Litigation

One of the most pressing concerns during a trustee removal proceeding is the protection of trust assets while the case is pending. Because litigation can take months or even longer to resolve, beneficiaries may be vulnerable to continued mismanagement or dissipation of assets by the trustee during that period. Florida courts have the authority to issue interim orders to protect the trust, including freezing trust accounts, restricting the trustee's authority to make distributions or sell assets, and requiring the trustee to post a bond. In urgent cases, beneficiaries may seek emergency relief through a temporary injunction or the appointment of a temporary receiver to manage the trust assets pending resolution of the removal petition.

Bonding Requirements

A court may require the trustee to post a bond as a condition of continuing to serve during the pendency of the removal proceeding. A bond provides a form of financial security to the beneficiaries, ensuring that if the trustee causes losses to the trust, there is a source of recovery. The court may also require a successor trustee to post a bond, particularly if the successor is an individual rather than a corporate trustee. The amount of the bond is typically based on the value of the trust assets and the nature of the trustee's powers.

Trust Administration Continuity

A trustee removal does not terminate the trust itself. The trust continues in existence, and the successor trustee assumes the duties and responsibilities previously held by the removed trustee. The removed trustee is required to cooperate in the transition by delivering all trust property, records, and documents to the successor trustee. Failure to do so may expose the removed trustee to further legal action and sanctions. Proper trust administration must continue without interruption to protect the interests of the beneficiaries.

Consequences of Trustee Removal

A court order removing a trustee carries significant consequences beyond the simple change in administration. The removed trustee forfeits the right to future compensation for trust services. Depending on the circumstances, the court may also require the removed trustee to disgorge compensation previously received, particularly if the removal was based on serious misconduct or self-dealing. Under F.S. § 736.1001, the court may compel a removed trustee to pay damages, restore trust property, or account for any profits made through a breach of trust.

A removed trustee may also be held personally liable for any losses suffered by the trust as a result of their misconduct. This liability is not extinguished by the removal itself—beneficiaries may pursue surcharge claims against the former trustee to recover the full amount of damages caused during the period of maladministration. The court may also award attorneys' fees and costs to the successful petitioner, which may be charged against the removed trustee personally rather than against the trust estate.

Related Trust Disputes

Trustee removal petitions frequently arise alongside other types of trust litigation. Beneficiaries seeking removal of a trustee may simultaneously pursue claims for breach of trust to recover losses, seek a trust accounting to obtain a full picture of the trustee's management, or challenge other aspects of the trust through a trust contest. These related claims can strengthen a removal petition by providing additional evidence of the trustee's misconduct or unsuitability.

Defenses to a Trustee Removal Petition

A trustee facing a removal petition is entitled to defend against the allegations. Common defenses include demonstrating that the trustee acted within the scope of their authority under the trust instrument, that the trustee exercised reasonable judgment in making investment and distribution decisions, or that the beneficiaries consented to or ratified the trustee's actions. A trustee may also argue that the petitioner lacks standing, that the alleged misconduct does not rise to the level required for removal, or that removal would not serve the best interests of all beneficiaries. The trust instrument itself may contain exculpatory clauses that limit the trustee's liability for certain actions, although such clauses are not enforceable to the extent they purport to relieve the trustee of liability for bad faith or reckless indifference to the beneficiaries' interests.

Contact a Florida Trustee Removal Attorney

If you believe a trustee is failing to fulfill their duties, mismanaging trust assets, or acting against the interests of the beneficiaries, the Law Offices of Albert Goodwin, PA can help you evaluate your options and pursue the appropriate legal action. We represent clients in trustee removal proceedings and related trust litigation matters throughout South Florida, including claims involving breach of fiduciary duty, self-dealing, contested accountings, and trust administration disputes.

Time is often critical in trustee removal cases. A trustee who is actively mismanaging or dissipating trust assets can cause irreparable harm if action is not taken promptly. Early intervention allows us to seek emergency relief from the court when necessary and to build the strongest possible case for removal.

Call us at 786-522-1411 or email us at [email protected] to schedule a consultation with an experienced Florida trustee removal attorney. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134, and we serve clients in Miami-Dade, Broward, and Palm Beach counties.