Too Early to Fight: Why Florida Will Not Let Anyone Contest a Living Person’s Trust

Few family situations feel more stressful than watching a parent’s estate plan change and suspecting something is off. Maybe a trust was amended, a new trustee appeared, or the shares look different than anyone expected. The urge to act right away is understandable. Florida law, however, draws a firm line while the person who created the trust is still alive. The Fort Lauderdale trust litigation lawyers at Edward J. Jennings, P.A. see how confusing that rule can feel, and an attorney can explain what it means for a specific family.

The Waiting Rule

Under § 736.0207(2), Florida Statutes, an action to contest the validity of a revocable trust, or the revocation of part of one, may not be commenced until the trust becomes irrevocable by its terms or by the settlor’s death. If an entire revocable trust has been revoked, a challenge to that revocation cannot begin until after the settlor dies. The same statute, in subsection (1), places the burden on the person contesting the trust to establish the grounds for invalidity.

Why Florida Draws the Line Here

A revocable trust can be changed by the person who created it. While it stays revocable, the trustee’s duties are owed to that person alone, according to § 736.0603(1), Florida Statutes. In that setting, a relative’s expected inheritance is a hope rather than a legal right. Courts are not asked to referee a plan the owner is still free to rewrite. The rule also spares families a different kind of cost: a lawsuit over a document that may be changed again next month, or that may never take effect in the form anyone feared. Many relatives find the waiting hard, but the statute reflects a choice to let the person who created the trust remain in charge of it.

One Exception and a Few Things Families Consider

The statute does not prohibit an action by the guardian of the property of an incapacitated settlor. Beyond that, relatives who are worried often explore options such as:

• Talking openly with the settlor about the plan
• Keeping their own dated notes about what they have observed
• Asking whether a guardianship question exists
• Learning which grounds Florida recognizes later, since § 736.0406 makes a trust or part of a trust void if it was procured by fraud, duress, mistake, or undue influence

What Changes After a Death

Once the trust becomes irrevocable, a challenge becomes possible, and time limits can begin to apply. That is why questions about notices and deadlines tend to come up quickly after a loss. Families who have been waiting for years may suddenly face a short timeline, and what felt like a distant legal question becomes an immediate one.

Worried about a loved one’s trust? An attorney can walk through how these rules might apply to your situation. At Edward J. Jennings, P.A., our Fort Lauderdale probate litigation attorneys welcome your questions. Reach out through the contact form on our website, and we will set up a confidential conversation.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/Sections/0736.0207.html