It is a fundamental principle of trust law that there must be a trustee for a valid trust to exist. Accordingly, although a trustee is free to resign from the office of trustee, the trust provisions regarding resignation and the Florida Trust Code must be followed by the resigning trustee. Pursuant to Section 736.0705, a resigning trustee must provide at least 30 days’ notice to all qualified beneficiaries, the settlor, (if living), and all Co-Trustees prior to resignation. A trustee may also resign with the approval of the Court, provided that the court may issue orders and impose conditions to protect the trust property. A resigning trustee is not relieved from any liability incurred while acting as trustee.
A trustee may be removed by the Co-Trustees, the trust settlor, the trust beneficiaries or by the Court. Many trust instruments contain provisions setting forth the process of removing a trustee. In addition to the instructions contained within the trust instrument itself, Section 736.0706 of the Florida Trust Code sets forth several grounds for judicial removal. The Court may remove a trustee where:
- The trustee has committed a serious breach of trust;
- The lack of cooperation among the Co-Trustees substantially impairs the administration of the trust;
- Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the Court determines that removal of the trustee best serves the interests of the beneficiaries; or
- There has been a substantial change of circumstances, or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable Co-Trustee or successor trustee is available.