Six ways a trusteeship falls vacant
Subsection (1) lists them, and the list is closed. A vacancy occurs if a person designated as trustee declines the trusteeship; if a person designated cannot be identified or does not exist; if a trustee resigns; if a trustee is disqualified or removed; if a trustee dies; or if a trustee is adjudicated to be incapacitated.
Two of those are worth pausing on. A trustee who has become incapable in fact but has not been adjudicated incapacitated has not created a vacancy under this paragraph, which is why removal proceedings under section 736.0706 are often the practical route. And a designated trustee who simply never acts has not declined; declining is an act.
When a vacancy has to be filled
If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.
Section 736.0704(2), Florida Statutes.
The default is therefore to carry on short handed. A trust with three trustees that loses one is not obliged to replace them, and neither is a trust with two. That is convenient and it is not always wise, particularly where the settlor named several trustees precisely so that they would check one another. Nothing in the subsection prevents filling the vacancy; it simply removes the obligation.
Who chooses
Where a vacancy must be filled in a noncharitable trust, subsection (3) sets a strict order. First is a person named or designated pursuant to the terms of the trust to act as successor trustee; second a person appointed by unanimous agreement of the qualified beneficiaries; third a person appointed by the court.
Most disputes never reach the second step, because most trusts name a successor. Where they do reach it, unanimity is the obstacle. Qualified beneficiary is a defined term in section 736.0103 and the class can include people with small or contingent interests, any one of whom can withhold agreement and push the choice to a judge.
For a charitable trust the structure is identical but the middle step belongs to the charities. Under subsection (4) the second priority is a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust. Note the words expressly designated. A charity that benefits in practice, but is not named in the instrument, has no vote.
The court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust, whether or not a vacancy in a trusteeship exists or is required to be filled.
Section 736.0704(5), Florida Statutes.
The section is titled as a vacancy provision and this subsection is not limited to vacancies. A court may add a trustee, or appoint a special fiduciary, whenever it considers that necessary for the administration of the trust, with no vacancy anywhere in the picture. That is a considerable power and it offers a route in situations where removal is difficult to establish but the administration plainly is not working, such as deadlocked cotrustees or a discrete conflict of interest affecting one transaction rather than the whole trusteeship.
No Florida court has construed this section
Our review of the Florida state courts, the Florida federal district and bankruptcy courts and the Eleventh Circuit, requesting every precedential status rather than the default view, returned no decision citing section 736.0704.
The open questions are practical ones. What a court considers when the qualified beneficiaries cannot agree and the choice falls to it. Whether a successor named in an instrument can be passed over as unsuitable, and on what showing. What a special fiduciary under subsection (5) may be given to do, and whether that appointment can be made over the objection of a serving trustee. How the priority order interacts with a trust that names a successor who has themselves been removed. None of this is settled in Florida.
Frequently Asked Questions
What counts as a vacancy in a Florida trusteeship?
Six things, under subsection (1). A person designated as trustee declines the trusteeship; a person designated cannot be identified or does not exist; a trustee resigns; a trustee is disqualified or removed; a trustee dies; or a trustee is adjudicated to be incapacitated. Note the fourth. Removal and disqualification create the vacancy, so the removal proceeding and the succession question are separate steps.
Does every vacancy have to be filled?
No. Subsection (2) says that if one or more cotrustees remain in office, a vacancy need not be filled, and that a vacancy must be filled if the trust has no remaining trustee. So a trust with two trustees that loses one keeps running with the survivor unless somebody chooses otherwise.
Who picks the successor trustee?
There is a fixed order for a noncharitable trust under subsection (3). First, a person named or designated pursuant to the terms of the trust. Second, a person appointed by unanimous agreement of the qualified beneficiaries. Third, a person appointed by the court. The beneficiaries only reach the question if the instrument does not answer it, and unanimity among qualified beneficiaries is a real hurdle.
Is it different for a charitable trust?
The structure is the same but the middle step changes. Under subsection (4) the second priority is a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust, rather than by beneficiaries.
Can a court appoint a trustee when there is no vacancy?
Yes, and this is the least known part of the section. Subsection (5) lets the court appoint an additional trustee or special fiduciary whenever it considers the appointment necessary for the administration of the trust, whether or not a vacancy exists or is required to be filled.
Common Situations
The trustee died and there is a cotrustee. Subsection (2) means the vacancy need not be filled at all. Whether it should be is a separate question about why the settlor named two.
The trust names a successor you do not want. The instrument takes first priority. Displacing a named successor is a harder application than simply filling an empty seat.
The beneficiaries cannot agree on a replacement. Unanimity is required at the second step. Without it the appointment falls to the court.
The trustee is functioning but the administration is stuck. Subsection (5) allows an additional trustee or special fiduciary without any vacancy, which is a lighter remedy than removal.
Sources of Law
- Section 736.0704, Florida Statutes (2025). Enacted by s. 7, ch. 2006-217, and never amended since.
- Section 736.0103, Florida Statutes, defining qualified beneficiary.
- Section 736.0706, Florida Statutes, on removal of a trustee.
- Our review searched Florida state courts, the Florida federal district courts, the Florida bankruptcy courts and the Eleventh Circuit on August 13, 2026, requesting every precedential status rather than the default view. We report a nil result as our own review and not as a certainty. Searching by section number is an imperfect tool in two known ways. It misses decisions that discuss a statute without naming it, and we have confirmed at least one Florida decision that names a section yet does not appear in a search for that number.
- Decisions discussed here are published opinions in other parties’ cases. They are not matters handled by this firm and they predict nothing about any reader’s case. No commercial citator pass has been run on this research.
Updated on August 13, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and published court decisions, not legal advice, and no attorney-client relationship is created. Reading this page does not make us your lawyers. Please do not send confidential details until we have connected.
