The default is no bond
A trustee shall give bond to secure performance of the trustee’s duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.
Section 736.0702(1), Florida Statutes. Enacted in 2006 and never amended since.
Read the word only. A Florida trustee posts no bond unless one of two things is true, and neither is automatic.
This is one of the sharper practical differences between trusts and estates, and it surprises families who have been through a probate. It also explains a good deal about how trust disputes actually run. Where an estate has a bonded personal representative, a trust often has an individual holding substantial assets with no security behind them at all, which is why the duties in Part VIII and the accounting requirements in section 736.08135 carry so much of the protective weight.
Even an express requirement yields to the court
The second limb repays close reading. A bond is required where it is required by the terms of the trust and the court has not dispensed with the requirement.
So a settlor who wrote a bond requirement into the instrument has not settled the question. The court can dispense with it. That is a genuine allocation of authority away from the settlor and toward the court, and it is worth knowing before relying on such a clause when drafting.
Section 736.0105(2)(p) puts the court’s power under this section among the provisions the terms of a trust cannot override, which is consistent. The settlor may ask for a bond, and cannot bind the court either to require one or to keep one in place.
The court controls everything about it
The court may specify the amount of a bond, the trustee’s liabilities under the bond, and whether sureties are necessary. The court may modify or terminate a bond at any time.
Section 736.0702(2), Florida Statutes.
Amount, scope of liabilities covered, whether sureties are needed at all, and the power to modify or terminate at any time. A bond under this section is a supervised instrument rather than a fixed condition of office.
For a beneficiary, that flexibility cuts both ways. A bond can be sought when circumstances change, for instance where a trustee’s conduct has raised concern but not yet justified removal under section 736.0706. It can also be reduced or ended on the trustee’s application.
A bond outlasts the trustee
One connection worth carrying away. Under section 736.0705(3), any liability of a resigning trustee or of any sureties on the trustee’s bond for the trustee’s acts or omissions is not discharged or affected by the resignation.
So where a bond exists, it does not evaporate when the trustee steps down. The security stays available for what happened while they served, which is precisely when a beneficiary is most likely to need it.
No Florida court has construed this section
Our review found no decision citing section 736.0702 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.
So the operative questions have no Florida answers. What a beneficiary must show for a court to find a bond needed. Whether a court may require one before any breach is established, as a protective measure. What weight a settlor’s express bond requirement carries against a trustee asking to have it dispensed with. And whether a trustee can be required to post a bond as a condition of continuing in office after a dispute has begun.