What Is a Notice of Trust?

A notice of trust is a legal document filed with the court in Florida that informs the public and potential creditors that a trust has been established for a deceased person.

It serves to notify interested parties that the trustee is now managing the decedent’s assets.

How Does a Notice of Trust Work?

In Florida, a notice of trust is the formal notice that a trustee provides to the public that the trustmaker has deceased. Upon the trustmaker’s death, Florida Statute 736.05055 requires that the successor trustee file a “notice of trust” with the court of the county of the trustmaker’s domicile. “Domicile” is where the decedent resided at the time of their death.

The statute requires certain information to be included in the Notice of Trust. The Notice of Trust must contain the trustmaker’s name, date of death, the title of the living trust, if any, the date of trust execution, and the successor trustee’s address. A Notice usually includes a statement that the trust is liable for expenses of probate administration and the decedent’s debts if the probate estate is insufficient to pay all debts.

The Notice of Trust is filed in the probate case if the decedent’s personal representative has initiated a probate proceeding. Absent an existing probate, the Clerk of Court will file and index the Notice.

The purpose of the Notice of Trust is to give public notice of the trust’s existence and the successor trustee’s contact information so that creditors are aware of assets available to pay creditor claims.

Notice to Trust Beneficiaries

In Florida, a Notice to Trust Beneficiaries is a formal document that is provided to all beneficiaries of a trust after the death of the settlor (the person who created the trust). This document is sent by the trustee (the person or entity responsible for managing the trust assets), and it notifies the beneficiaries about the trust’s existence, the identity of the settlor and trustee, the right to request a copy of the trust documents, and the right to account information.

According to the Florida Trust Code (Sections 736.0101-736.1301), within 60 days after acceptance of the trust, the trustee must give notice to the qualified beneficiaries of the trust’s existence, the identity of the settlor, the right to request a copy of the trust instrument, and the right to a trustee’s report.

Moreover, if a beneficiary requests it, the trustee is obligated to provide complete and accurate information about the nature and amount of the trust property. A trustee who fails to comply with the duty to inform and report commits a breach of trust, which could have legal consequences.

Frequently Asked Questions

What is a Notice of Trust?

A Notice of Trust is a legal document filed with the court to inform interested parties that a trust has been created for a deceased person, and the trust will be administering the decedent’s estate.

Why is a Notice of Trust necessary?

The Notice of Trust serves to notify creditors and other interested parties of the trust’s existence, allowing them to make claims against the trust if necessary, and helps to avoid the probate process for the assets held in the trust.

Who is responsible for filing the Notice of Trust?

The trustee of the trust is responsible for filing the Notice of Trust with the clerk of the court in the county where the decedent resided at the time of death.

What information must be included in the Notice of Trust?

The Notice of Trust must include the name of the trust, the date of the trust’s creation, the name and address of the trustee, and a statement that the trustee is administering the trust in place of probate.

When must the Notice of Trust be filed?

The Notice of Trust should be filed promptly after the decedent’s death, usually within a reasonable time frame to ensure compliance with legal requirements and to start the claims period for creditors.

Does filing a Notice of Trust protect the trustee from creditors?

Filing the Notice of Trust starts the clock on the statutory period during which creditors can make claims against the trust, typically two years from the date of the decedent’s death or within 90 days from receiving actual notice of the trust.

Is the Notice of Trust a public record?

Yes, once filed, the Notice of Trust becomes a public record, providing transparency and ensuring that all potential claimants are informed of the trust’s existence.

Does a Non-Owner Spouse Have a Legal Interest in a Florida Homestead?

A non-owner spouse does have a legal interest in their Florida homestead property. A couple can arrange to have only one of two spouses own the couple’s homestead property.

A married person can maintain a legal homestead in Florida even if one spouse is not on the home’s legal title. The property remains protected from creditors, and the house can qualify for the homestead tax exemption.

A non-owner spouse has their a separate homestead interest in the property even though that spouse’s name is not on the title. An owner-spouse cannot sell, transfer, or mortgage the family homestead without the signature and agreement of a non-owner spouse.

When only one spouse is on the homestead title and the owner spouse dies, the non-owner spouse residing in the home will have, at minimum, a life estate interest in the homestead.

Florida law provides a surviving spouse with an elective share of the deceased spouse’s estate, including the homestead property. The elective share prevents a surviving spouse from being disinherited and ensures they receive a portion of the estate.

If the owner spouse dies, Florida’s homestead laws have specific provisions for inheritance:

  1. Surviving Spouse and Minor Children: If the deceased owner is survived by a spouse and minor children, the homestead property cannot be devised (left in a will) to anyone other than the surviving spouse. The spouse receives a life estate in the property, meaning they have the right to live in the home for their lifetime, and the minor children receive the remainder interest (ownership after the spouse’s death).
  2. Surviving Spouse Without Minor Children: If there are no minor children, the surviving spouse can choose either a life estate or a one-half interest in the homestead property as tenants in common with the decedent’s descendants (if any).

Waiving Spousal Homestead Rights

A married person can waive their spousal homestead rights and interests. Homestead right waivers are frequently included in pre-nuptial agreements.