The five requirements
A trust is created only if:
(a) The settlor has capacity to create a trust.
(b) The settlor indicates an intent to create the trust.
(c) The trust has a definite beneficiary or is: 1. A charitable trust; 2. A trust for the care of an animal, as provided in s. 736.0408; or 3. A trust for a noncharitable purpose, as provided in s. 736.0409.
(d) The trustee has duties to perform.
(e) The same person is not the sole trustee and sole beneficiary.
Section 736.0402(1), Florida Statutes. Enacted in 2006 and never amended since.
Two supporting provisions do more work than their length suggests. Subsection (2) defines a definite beneficiary as one who can be ascertained now or in the future, subject to any applicable rule against perpetuities, which is a good deal more forgiving than requiring somebody to be named. Subsection (3) then validates a trustee’s power to select a beneficiary from an indefinite class, and provides that if the power goes unexercised for a reasonable time it fails and the property passes to whoever would have taken it had the power never been conferred.
Read together, those two subsections make the definite beneficiary requirement harder to fail than people assume. A trust does not collapse because the beneficiaries cannot be identified today.
The one element a Florida court has applied
Our review found a single Florida decision applying any of these requirements to facts, and it is a striking one. In Jasser v. Saadeh an emergency temporary guardian had been appointed over the settlor, and that appointment carried his right to contract. At a hearing the same day, the court confirmed that all of his rights except the right to vote remained removed from him. That same afternoon, and without notice to his own counsel, the guardian had him sign a new trust agreement.
The Fourth District affirmed summary judgment that the trust was void, resting on the capacity requirement in paragraph (1)(a).
Thus, because Saadeh had no legal right to execute the trust, the trust was invalid and void.
Jasser v. Saadeh, 97 So. 3d 241 (Fla. 4th DCA 2012), rehearing denied October 10, 2012.
We quote only that clause deliberately. The sentence in which the court sets out the statute is damaged in the electronic text available to us, in four separate places within a single line, including a collapsed bracket, a misspelling of settlor, and a lowercase letter standing in for a numeral. Reproducing it would put errors inside the court’s words that the court did not make.
The practical lesson is about capacity as a legal status rather than a medical one. Nobody in that case had to prove what the settlor understood. His right to contract had been removed by court order, so he could not create a trust that afternoon whatever his comprehension.
The tests courts actually reach for
Here is the part that will not appear in a summary of the statute, and it is the most useful thing on this page for anyone researching the question.
Florida courts deciding whether a trust was created frequently do not apply section 736.0402 at all. They apply older case law formulations, and there is more than one in circulation.
A federal district judge in Florida in 2023 decided that a marriage settlement agreement had created a trust over a college savings plan by asking whether the intent to do so was definite and particular, and whether four essential elements were present, namely a settlor or grantor, a trustee, a clearly ascertainable beneficiary, and a description of the property conveyed. That test comes from a 1996 First District decision, quoting a 1962 Second District decision, citing a Florida Supreme Court case from 1927. Section 736.0402 appears in that opinion only as an unexplained citation tacked on after the test.
The Third District, in 2024, cited this section alongside a 1966 decision requiring a clear preponderance of the proof and reciting a three element test for an express trust in personalty, requiring sufficient words to raise it, a definite subject matter, and a certain and ascertained subject.
So three formulations are live at once. The statute lists five requirements. The common law test used in the 2023 case lists four. The one cited in 2024 lists three. They overlap and they do not match. The statute contains no property description requirement; the four element test contains no capacity requirement and no sole trustee bar.
None of this makes the statute inoperative. It does mean that a party arguing about whether a trust exists should expect the other side to be working from a different list, and should be ready to say why the statutory elements govern.
What no Florida court has decided
Most of this section. We state that as our own review rather than as a certainty.
Paragraph (1)(e), the sole trustee and sole beneficiary bar, has been raised in a Florida appellate court and left undecided. In a 2018 appeal the Fourth District recorded the trial court’s view that the paragraph did not apply because a husband and wife had served as cotrustees, and quoted the provision in a footnote while framing the argument. Then it stopped.
We need not reach this argument, however, because we find that the children are in fact beneficiaries of the Family Trust.
Rachins v. Zaven Minassian Trust, 251 So. 3d 919 (Fla. 4th DCA 2018). The opinion carries the legend “Not final until disposition of timely filed motion for rehearing.”
That is a court declining to construe the provision, and we are not going to present it as more. It does tell you the argument is live and gets made.
The remaining elements are in a similar position. Paragraph (1)(b), indication of intent, has not been construed as a statutory element, as distinct from the common law inquiry into whether intent was definite and particular. Paragraph (1)(d), trustee duties to perform, has been mentioned in a parenthetical and applied nowhere. Subsections (2) and (3), on when a beneficiary is definite and on selection from an indefinite class, have no Florida case law at all.
On the definite beneficiary requirement the nearest thing to authority is indirect. In Megiel-Rollo v. Megiel a circuit court concluded that a trust whose remainder beneficiaries were never designated had never been created under this section. The Second District reversed, holding the trust could be reformed under section 736.0415 to supply what the drafter had omitted. It did not endorse the trial court’s reading of this section so much as route around it, which leaves the question open in a slightly awkward way. A trust that fails paragraph (1)(c) may nonetheless be fixable by reformation.