Two subsections that do different work
(1) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for reasonable expenses that were properly incurred in the administration of the trust.
(2) An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.
Section 736.0709, Florida Statutes. Enacted in 2006 and never amended since.
Subsection (1) is the ordinary case. The trustee pays a bill in the course of administering the trust and takes it back out of trust property. Two conditions attach, and both are doing work. The expense must be reasonable, and it must have been properly incurred in the administration of the trust. Neither phrase has been construed by a Florida court under this section.
Subsection (2) is narrower and stronger. It applies where the trustee advanced money for the protection of the trust, and it does not merely permit repayment. It creates a lien.
Why the difference is worth understanding
A right to be reimbursed is a claim against the trust. A lien is security over the trust’s property. When the trust has enough money the two feel identical, and when it does not, they are not remotely the same thing.
The distinction is about why the money was spent rather than how much. Paying the annual accounting fee is administration. Paying to stop a foreclosure on trust real estate, or to keep insurance in force on the trust’s only asset, is protection. On the face of the statute only the second creates a lien.
The Eleventh Circuit built a holding on it
The most substantial treatment of this section is federal. In a dispute about whether a trustee’s claim for commissions and reimbursement could outrank a federal estate tax lien, the Eleventh Circuit read the two subsections against each other and concluded that the reimbursement right in subsection (1) is not a lien at all. The court reasoned that Florida law expressly creates a lien in subsection (2), in circumstances that did not apply, and that the express creation of one there supported reading its absence in subsection (1) as deliberate. Because the claim was not a lien, the common law rule that the first lien in time takes priority never engaged.
We are describing that reasoning rather than quoting it, and the reason is worth stating. The electronic text of that opinion available to us contains a systematic scanning error in which the word lien is rendered as hen throughout the relevant passage, including inside the court’s own direct quotation of the statute. Reproducing it would put a corrupted word inside a quotation of the Florida Statutes, which is the worst possible place for one. The statutory text quoted at the top of this page comes from the Legislature’s own site.
Two limits on that decision. It is a federal court of appeals applying Florida law in a federal tax case, so on Florida trust questions it is persuasive rather than binding on a Florida court, though it is the highest tier of persuasive authority we collect. And the section 736.0709 point was an alternative ground; the primary holding turned on the structure of two Internal Revenue Code provisions.
The only other decision our review found citing this section is a Florida appellate opinion that mentions it in a single sentence, alongside trustee compensation and the priority of trust administration fees, while deciding whether homestead sale proceeds could pay those fees. Our page on section 736.0708 covers that case.
What has not been decided
No Florida court has construed either subsection. So the questions a trustee actually has are open.
What makes an expense properly incurred, and whether that is a different test from reasonableness or the same one stated twice. Whether the lien in subsection (2) needs to be recorded or perfected in any way, or arises automatically. Where it ranks against a creditor of the trust, or against a beneficiary’s interest. What interest as appropriate means in subsection (1) and whether it differs from the reasonable interest in subsection (2). And whether a trustee who was later removed for breach keeps a lien for advances made before the breach.
One point that is settled, because it sits in a different section. Expenses have to be disclosed. Under section 736.08135(2)(b) a trust accounting must show all cash and property transactions and all significant transactions affecting administration, including compensation paid to the trustee and the trustee’s agents. A reimbursement a beneficiary cannot find in an accounting is a problem before it is anything else.