Three routes out
A trustee may resign in accordance with the procedure set forth in the trust instrument and upon notice to the cotrustees or, if none, to the successor trustee who has accepted the appointment, or, if none, to the person or persons who have the authority to appoint a successor trustee. Notwithstanding any provision of the terms of the trust, a trustee may also resign:
(a) Upon at least 30 days’ notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or
(b) With the approval of the court.
Section 736.0705(1), Florida Statutes.
The first route follows the document. The other two do not have to. Note the phrase notwithstanding any provision of the terms of the trust. Those two routes are available whatever the instrument says, which is the drafting equivalent of a fire exit.
The 30 day route has a notice list worth reading closely, because it is wider than the one in the first route. It reaches the qualified beneficiaries, the settlor if still living, and all cotrustees. A trustee who tells only their cotrustee has not satisfied it.
The court route is the one to use when resigning is not clean, and subsection (2) explains why. In approving a resignation the court may issue orders and impose conditions reasonably necessary for the protection of the trust property. A trustee who wants a judicial blessing on the handover, or who is leaving in the middle of a dispute, is buying supervision rather than delay.
A right the settlor cannot take away
Florida trust law generally lets the settlor’s document override the Code. Section 736.0105(2) sets out the exceptions, and this one is on the list.
The right of a trustee under s. 736.0701 to decline a trusteeship and the right of a trustee under s. 736.0705 to resign a trusteeship.
Section 736.0105(2)(o), Florida Statutes, listing provisions the terms of a trust cannot override.
So a clause requiring a trustee to serve until death, or making resignation conditional on the consent of somebody who will not give it, does not hold. The settlor may shape the procedure. The exit itself is not theirs to close.
What resignation does not do
Here is the sentence that surprises people, usually at the worst moment.
Any liability of a resigning trustee or of any sureties on the trustee’s bond for acts or omissions of the trustee is not discharged or affected by the trustee’s resignation.
Section 736.0705(3), Florida Statutes.
Not discharged. Not affected. A trustee who resigns because an accounting is overdue, or because a transaction is being questioned, has changed nothing about their exposure for what already happened. And the second half reaches further than the first. A surety on the trustee’s bond is not released either, so resigning does not quietly unwind the security the trust had.
The practical consequence runs the other way too. A departing trustee’s conduct becomes somebody else’s problem to examine. Under section 736.0812 the incoming trustee must take reasonable steps to compel delivery of trust property and, where they know of a breach committed by a former trustee, to redress it. Resigning does not put the question to bed; it hands it to the person who takes your place.
What happens after
A resignation creates a vacancy under section 736.0704(1)(c). Whether it must be filled depends on whether a cotrustee remains, and if it must be filled there is an order of priority, starting with the person the instrument names, then a person chosen by unanimous agreement of the qualified beneficiaries, then a person appointed by the court.
Separately, section 736.0707 governs what a trustee who has resigned or been removed must actually do with the property and records, and section 736.08125 sets out when a successor is protected from a predecessor’s conduct, including a six month clock that starts when the successor gives written notice of accepting the trust.
No Florida court has construed this section
Our review found no decision citing section 736.0705 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. We confirmed the search itself was working by running the same query against a section that does return results.
The section was amended once, in 2022, and the open questions are practical. Whether the 30 day notice must take any particular form. Whether a resignation is effective on the expiry of the notice or on some later acceptance by a successor. What happens where there is no cotrustee, no accepted successor and nobody with authority to appoint one, which is the situation the first route does not obviously answer. And what conditions a court may impose under subsection (2) before approving a resignation, which on the face of it could include producing an accounting first.