Two ways to accept, and one of them is passive
Except as otherwise provided in subsection (3), a person designated as trustee accepts the trusteeship:
(a) By substantially complying with a method of acceptance provided in the terms of the trust; or
(b) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.
Section 736.0701(1), Florida Statutes. Enacted in 2006 and never amended since.
Paragraph (a) is the tidy route. The trust says how to accept and the person does that. Note it asks only for substantial compliance, so a technical slip in the manner of acceptance is unlikely to unwind it.
Paragraph (b) is where people get caught. It applies not only where the trust is silent but also where the stated method is not expressly made exclusive, which covers a great many instruments. In that situation acceptance happens by conduct, such as taking delivery of trust property, exercising powers, performing duties, or otherwise indicating acceptance.
So the adult child who is named successor trustee, and who after a parent’s death starts collecting statements, paying a bill from the trust account, or dealing with an insurer, has very likely accepted the trusteeship. Nobody signed anything. The duties in section 736.0801 and following attach anyway, and so does the personal exposure.
Silence is declining, not waiting
A person designated as trustee who has not accepted the trusteeship may decline the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have declined the trusteeship.
Section 736.0701(2), Florida Statutes.
The second sentence runs against most people’s intuition. Doing nothing does not keep your options open. After a reasonable time from knowing of the designation, a designated trustee who has not accepted is deemed to have declined.
That has a consequence beyond the individual. A declination creates a vacancy under section 736.0704(1)(a), and if no cotrustee remains the vacancy has to be filled, by the person the instrument names, then by unanimous agreement of the qualified beneficiaries, then by the court. A trust can therefore drift into a court appointment simply because the named person never got round to responding.
What counts as a reasonable time is undefined and no Florida decision has addressed it.
Looking without leaping
Subsection (3) is the provision that makes it possible to do proper diligence, and it is the reason a cautious professional will not simply refuse on sight.
A person designated as trustee may, without accepting the trusteeship:
(a) Act to preserve the trust property if, within a reasonable time after acting, the person sends to a qualified beneficiary a written statement declining the trusteeship.
(b) Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.
Section 736.0701(3), Florida Statutes.
Paragraph (b) is unconditional and broad. A designated trustee may inspect or investigate the trust property to work out potential liability under environmental or other law or for any other purpose, without that counting as acceptance. The environmental reference is not decorative. Taking on contaminated real property is a genuine way for a trustee to acquire liability, and the Code lets you look first.
Paragraph (a) carries a condition and it is easy to fail. You may act to preserve the property, but only if within a reasonable time after acting you send a qualified beneficiary a written statement declining. Preserve the property and then say nothing, and paragraph (a) does not protect you; you are back in paragraph (1)(b) territory where conduct signals acceptance.
No Florida court has construed this section
Our review found no decision citing section 736.0701 in the Florida state courts, the Florida federal district and bankruptcy courts, or the Eleventh Circuit, searching every precedential status rather than the default view.
That leaves the practical questions open. What a reasonable time is, for accepting and for sending the written declination. What conduct falls short of exercising powers or performing duties, which is the line between diligence and accidental acceptance. Whether a person who has accepted by conduct can undo it, or must resign under section 736.0705 and carry the liability that resignation does not discharge. And whether a written declination must go to a qualified beneficiary specifically, or whether notice to the trust’s lawyer or a cotrustee would do.