The default rule, and why this section matters more than its number suggests
Except as otherwise provided in the terms of the trust, this code governs the duties and powers of a trustee, relations among trustees, and the rights and interests of a beneficiary.
Section 736.0105(1), Florida Statutes.
That single sentence sets the posture of the entire chapter. Most of what the Florida Trust Code says is a default, in force only until the settlor’s document says something else. Read any other section of chapter 736 without this one in mind and you will overstate what it requires.
Which makes subsection (2) the most consequential list in the Code, because it is where the defaults stop.
The list
The terms of a trust prevail over any provision of this code except:
Section 736.0105(2), Florida Statutes, introducing twenty three paragraphs.
Twenty three categories follow, lettered (a) through (w). Some are structural, some protect the court, and several protect beneficiaries directly. The ones that come up most in practice are these.
Creation and execution. The requirements for creating a trust, at (a). The requirement that a trust have a purpose that is lawful, not contrary to public policy, and possible to achieve, at (c). And the formalities required under section 736.0403(2) for the execution of a trust, at (i). A settlor cannot draft around the two witness rule.
The court’s own authority. The periods of limitation for commencing a judicial proceeding, at (d). The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice, at (e). And the power of the court to modify or terminate a trust under sections 736.0410 to 736.04115 and under 736.0413, 736.0415 and 736.0416, at (j). A clause purporting to make a trust unmodifiable by any court does not do that.
Creditor and spendthrift questions. The effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust under part V, at (l). Our pages on section 736.0503 and section 736.0504 cover the substance.
Duties to the people the trust is for. Paragraphs (r), (s) and (t) place the section 736.0813 duties beyond the settlor’s reach. Those duties are notifying qualified beneficiaries that the trust exists and who the trustee is, providing a complete copy of the trust instrument, accounting, and responding to a request for relevant information about assets, liabilities and administration. A trust that says the trustee need never account is asserting something the Code does not allow.
The trustee’s own position. The right to decline a trusteeship and the right to resign, at (o). The court’s power under section 736.0708(2) to adjust compensation specified in the trust that is unreasonably low or high, at (q). And the effect of an exculpatory term under section 736.1011, at (u).
Duties tied to the settlor’s death. The duty under section 736.05053 to pay expenses and obligations of the settlor’s estate, at (m), and the duty under section 736.05055 to file a notice of trust, at (n).
One paragraph worth reading in full
Paragraph (2)(b) protects the central fiduciary obligation, and its wording has changed in a way that matters.
(b) Subject to s. 736.1409, relating to the duties and liabilities of a directed trustee; s. 736.1411, relating to limitations on duties of a trustee or trust director to monitor, inform, or advise on matters involving the other; and s. 736.1412, relating to the allocation of powers among cotrustees, requirements for excluded cotrustees to act as a directed trustee, and liability and related obligations of directing cotrustees, the duty of the trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
Section 736.0105(2)(b), Florida Statutes.
The duty at the end is the one the paragraph protects, namely good faith, the terms and purposes of the trust, and the interests of the beneficiaries. A clause purporting to release a trustee from that is asking for something the Code withholds.
But the opening words are a 2021 addition and they qualify it. In a directed trust, where somebody other than the trustee holds power to direct, three sections of Florida’s directed trust law govern instead. Commentary written before 2021 will not carry that qualification, and much of the available commentary is undated.
The section has been amended five times, in 2006, 2009, 2018, 2021 and 2022, and the paragraph letters have moved with each. An older opinion citing a letter was right for its year and may point somewhere else today.
What Florida courts have actually done with this section
Something worth stating plainly, because it cuts against how the section is usually described. Every decision we read cites this section for the default rule, not the mandatory list.
The Fifth District cited it for the proposition that the Code operates subject to the trust.
Likewise, except as otherwise provided in the terms of the trust, the Florida Trust Code grants the trustee broad duties and powers. § 736.0105, Fla. Stat. (2021).
Roller v. Collins, No. 5D22-1114 (Fla. 5th DCA Oct. 20, 2023). The opinion carries the legend “Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.”
A federal district judge did the same, in an order adopting a magistrate judge’s recommendation in a receivership.
The Magistrate Judge correctly found that granting Acheron’s motion would contravene the language of the Trust instrument. The Trust Agreement governs its termination. § 736.0105(2), Fla. Stat. (recognizing that the terms of the trust instrument control).
SEC v. Mutual Benefits Corp., No. 04-60573-CIV (S.D. Fla. Nov. 16, 2020). A trial level order, not binding authority, and the parenthetical is the court’s own description rather than statutory text.
And the Fourth District cites subsections (1) and (2)(b) together in a single string cite, supporting a sentence about a trustee seeking only reasonable fees, in a case whose actual holding is about service of process. It does not discuss overridability at all.
So the content of the mandatory list on this page comes from the statute, not from case law, and we would rather say that than imply a body of authority that does not exist. No Florida decision we located holds that a trust clause failed because subsection (2) forbade it. That is a striking gap in a provision this important, and it means an argument built on the list is an argument from text.
One document citing this section, a second order in the same federal receivership, was not read. A bot check interrupted the research pass and we would rather record that than pretend the sweep was complete.