The whole section
A trust may be created by:
(1) Transfer of property to another person as trustee during the settlor’s lifetime or by will or other disposition taking effect on the settlor’s death;
(2) Declaration by the owner of property that the owner holds identifiable property as trustee; or
(3) Exercise of a power of appointment in favor of a trustee.
Section 736.0401, Florida Statutes. Enacted in 2006 and never amended since.
Three methods, joined by or. Each is sufficient on its own.
Method (1) is the one people picture. Property moves to a trustee. Note that it covers both lifetime transfers and transfers taking effect at death, which is how a testamentary trust created by will comes into being.
Method (3) is the least discussed. Somebody holding a power of appointment under an existing instrument can exercise it in favour of a trustee, and a trust exists as a result. The person creating it is exercising a power somebody else gave them.
The method that needs no transfer
Method (2) deserves its own attention because it is the one most Florida families actually use without realising it has a name.
A declaration of trust is an owner saying that from now on they hold identifiable property as trustee rather than as owner. Nothing is handed to anyone. No third party receives anything. The same person is on both sides of the arrangement.
That is the ordinary revocable living trust at the moment of signing, with the settlor as their own first trustee. It is also why funding is a separate problem from creation. The declaration can be perfectly valid while the settlor’s house remains titled in their individual name, and our page on reformation covers a 2025 decision refusing to treat a failure to retitle as a mistake in the trust’s terms.
One limit sits in the wording. The declaration must be of identifiable property. No Florida decision we located construes that phrase, and it is doing real work, because a declaration that does not identify what it holds is on weaker ground than one that does.
Methods are not requirements
This is the distinction worth carrying away, and it is the one that gets muddled in argument.
This section answers how. Section 736.0402 answers whether it worked. That section requires capacity, an indication of intent, a definite beneficiary or one of three listed exceptions, trustee duties to perform, and that the same person not be sole trustee and sole beneficiary. A valid method plus a failed requirement is still no trust.
A third section deals with a different question again. Section 736.0403 governs formalities, meaning whether the document was signed the way Florida requires, which for the testamentary aspects of a revocable trust means two attesting witnesses. So a challenge to a Florida trust may be about the method, the requirements, or the execution, and those are three separate arguments with three separate answers.
Where this section actually turns up
Rarely, and mostly not in trust disputes. Our review located three documents citing it, two of which were invisible in a default CourtListener search and appeared only when every precedential status was requested. Both of those are federal.
The most substantial use is in a bankruptcy court, deciding whether a lawyer stood in the kind of fiduciary relationship that makes a debt non dischargeable. Working out whether a technical trust existed, the court reached for this section and its neighbour as the source of the basic elements.
Though the Eleventh Circuit has not expressly adopted or articulated this test, its elements are rooted in binding case law and the basic elements of trust formation.3 See Fla. Stat. §§ 736.0401 & 736.0402; see, e.g., Fernandez-Rocha, 451 F.3d at 818; Quaif, 4 F.3d at 954; Cross, 666 F.2d at 881; Angelle, 610 F.2d at 1340.
Richardson v. Douglass, Adv. No. 21-01097 (Bankr. S.D. Fla. Nov. 1, 2021), an order granting in part a motion to dismiss. A trial level order, not binding appellate authority, and no reporter citation has issued.
That court then quoted the three creation methods and attributed them to this section rather than to section 736.0402, which is the correct attribution and worth noting because the two are so often cited together as a pair.
The other two are passing citations. A federal district judge cited the two sections as a range while deciding whether a marriage settlement agreement had created a trust, and decided that question on Florida common law elements rather than on either statute. A Florida appellate decision cites subsection (1) in a footnote about a testamentary trust. We are describing rather than quoting both, in the first case because the citation is punctuated with a character this site cannot reproduce, and in the second because we read that opinion for a different section and have not verified the passage for this one.
So no Florida court has construed this section. What it means to hold identifiable property, whether a declaration can reach after acquired property, and how method (3) interacts with the rules on powers of appointment are all open.