The boundary of the whole chapter
Every duty, every remedy and every deadline in the Florida Trust Code depends on the Code applying in the first place. This section is where that is decided, and it is worth reading before any argument about what a trustee owes.
Except as otherwise provided in this section, this code applies to express trusts, charitable or noncharitable, and trusts created pursuant to a law, judgment, or decree that requires the trust to be administered in the manner of an express trust.
Section 736.0102(1), Florida Statutes.
The operative words are express trusts. A trust a court imposes as a remedy is not an express trust, and the second half of the subsection catches only those court-created trusts that a law or decree requires to be administered in the manner of an express trust.
The exclusions, and there are eleven of them
Subsection (2) is a single sentence separated by semicolons. It excludes constructive and resulting trusts, conservatorships, custodial arrangements under the Florida Uniform Transfers to Minors Act, business trusts that issue certificates to beneficiaries, common trust funds, trusts created by the form of an account or a deposit agreement at a financial institution, voting trusts, security arrangements, liquidation trusts, trusts whose primary purpose is paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits, and any arrangement under which a person is a nominee or escrowee for another.
Two of those matter to ordinary families. Constructive and resulting trusts are the ones a court declares when someone has been unjustly enriched or when a transfer failed. They are remedies, not arrangements, and none of the Code’s machinery applies to them. And trusts created by the form of an account covers the bank account held in trust for a child.
The one decision applying this section
In 2010 the Fourth District had to decide whether an attorney in fact could change the beneficiary of a payable on death account. Along the way it addressed what kind of thing such an account is.
A Totten trust is different from other trusts in that it is not created with any of the formalities of a trust or will. Further, it is specifically excluded from the provisions and restrictions that apply to revocable trusts under the Florida Trust Code. § 736.0102, Fla. Stat. (2007).
Beane v. SunTrust Banks, Inc., 47 So. 3d 922 (Fla. 4th DCA 2010).
A Totten trust is the ordinary bank account opened by one person in trust for another. It has been described in Florida since 1956 as a tentative trust, revocable at will until the depositor dies. It is not governed by this chapter, which means the rules on amendment, revocation, accountings and trustee duties simply do not reach it.
That decision also applied the power of attorney statute in force at the time, section 709.08. That statute has since been replaced by the current chapter 709 power of attorney provisions, so the case is authority on the trust point and not on the agency point.
Land trusts sit almost entirely outside
Subsection (3) puts land trusts under section 689.071 outside the Code except to the extent three specific provisions provide otherwise. It then does something protective.
A trust governed at its creation by this chapter, former chapter 737, or any prior trust statute superseded or replaced by any provision of former chapter 737, is not a land trust regardless of any amendment or modification of the trust, any change in the assets held in the trust, or any continuing trust resulting from the distribution or retention in further trust of assets from the trust.
Section 736.0102(3), Florida Statutes.
In plain terms, a trust that began life under the Trust Code does not become a land trust later because it bought real property or was amended. Its character is fixed at creation.
A research note, and it is a caution about citations
A search for this section number returns twelve documents. Ten of them predate July 1, 2007, when the Trust Code took effect, so they cannot be citing it. They are cases about county taxation and federal judges’ income, and the digits belong to something else.
Of the two that remain, one is the decision quoted above. The other is a 2021 federal order which cites this section for a proposition that belongs to a different one.
see also Fla. Stat. § 736.0102 (stating that “[t]his chapter may be cited as ‘The Florida Trust Code’”).
A footnote in an order of the United States District Court for the Southern District of Florida, 2021.
Those words are not in section 736.0102. They are section 736.0101, the short title, which reads that the chapter may be cited as the Florida Trust Code. We fetched the section to confirm it. The quotation is also slightly off, moving one word inside the quotation marks.
We record it for the same reason we record everything of this kind. A citation is a claim, and the cheapest check available is to open the section and see whether the words are there. This one takes under a minute and would have caught it.