A Florida Trustee’s Duty to Get the Property In and Keep It Safe
Two duties hide in one sentence, and the first one catches trustees who never gathered the assets at all.
Section 736.0809 requires reasonable steps to take control of trust property and to protect it. Where property was never collected, this is the section that says it should have been.
Getting it in ↓This is the section behind assets that were never gathered.
Keeping it safe ↓Insurance, security, and not leaving property exposed.
No case law ↓No Florida decision cites this section.
That’s the quick version. The details below are what decide your situation, and where the costly mistakes hide.
One sentence, two duties
A trustee shall take reasonable steps to take control of and protect the trust property.
Section 736.0809, Florida Statutes. Enacted in 2006 and never amended since.
The sentence is easy to read as a single vague obligation to look after things. It is not. Take control of and protect are separate duties that fail in different ways, and separating them is the useful thing this page can do.
Getting the property in
This is the duty that catches the most common real world problem, which is a trust that on paper holds assets it has never actually received.
It happens constantly. A settlor signs a trust and never retitles the accounts. A predecessor trustee resigns and keeps possession of records or property. A house remains in an individual name. Somebody holds trust property and simply does not hand it over. In each case the trust exists and the property is not under the trustee’s control, and this section says the trustee must take reasonable steps about it.
Three other provisions do related work and are worth reading together with this one. Section 736.0812 requires reasonable steps to compel a former trustee or other person to deliver trust property. Section 736.0707 addresses the duties of a trustee who has resigned or been removed. And section 736.0811 requires the trustee to enforce claims belonging to the trust, which is what a demand for property that somebody refuses to return becomes.
A trustee who inherits a mess and does nothing about it is not neutral. The duty is affirmative.
Keeping it safe
The second duty attaches once the property is held. What it requires depends entirely on what the property is, and because no court has construed the section there is no Florida authority setting a floor.
Some of the content is supplied by neighbouring sections rather than by this one. Section 736.0810 requires the trustee to keep trust property separate from their own and to have the trust’s interest appear in records maintained by a third party, which is a protection against the property being lost through confusion as much as through misappropriation. Section 736.08105 deals with marketable title to trust real property. The Prudent Investor Act governs how investments are handled.
No Florida court has construed this section
Our review found no decision citing section 736.0809, in the Florida state courts, the Florida federal district and bankruptcy courts, or the Eleventh Circuit, searching every precedential status.
What that means in practice is that reasonable steps has no Florida gloss on it here. Whether a trustee must sue to recover property, or only demand it. How long a trustee may wait. Whether the duty is measured against the cost of recovery relative to the value of the property, as section 736.0805 would suggest for expenses generally. Whether a beneficiary can compel the trustee to act. None of it is settled, and a claim under this section will be argued from the general duty provisions and the breach remedies in section 736.1001.
Trust assets nobody ever gathered
A trustee who left property with a predecessor, or in the wrong name, has a problem under this section and under two others.
It provides that a trustee shall take reasonable steps to take control of and protect the trust property. That is two obligations in one sentence. The first is bringing the property under the trustee’s control, and the second is protecting it once it is.
What if trust assets were never collected?
That engages the first half of this section directly. It also engages section 736.0812, which requires a trustee to take reasonable steps to compel a former trustee or other person to deliver trust property, and section 736.0707, which addresses what a resigning or removed trustee must do.
Does this cover insuring trust property?
The statute does not say so in terms, and no Florida decision construes it. Protecting the property is the standard, and what that requires depends on the property. There is a separate provision, section 736.08105, dealing specifically with when a trustee must establish marketable title to trust real estate.
Is a trustee liable for failing to take control of property?
That would be a breach of trust, and the remedies are in section 736.1001. No Florida decision has applied this particular section, so what counts as reasonable steps is not defined by case law.
Common Situations
The trust was never funded. Assets that were never retitled are the classic failure of the take control duty.
A former trustee kept the records. Section 736.0812 addresses compelling delivery, and section 736.0707 the outgoing trustee’s obligations.
Property is sitting uninsured or unsecured. The protect limb applies, though no Florida case defines what it requires.
The trustee says recovery is not worth the cost. That argument has no Florida authority under this section either way.
Sources of Law
Section 736.0809, Florida Statutes (2025). Enacted by s. 8, ch. 2006-217, and never amended since.
Section 736.0812, Florida Statutes, on compelling delivery of trust property.
Section 736.0811, Florida Statutes, on enforcing claims of the trust.
Section 736.0810, Florida Statutes, on keeping trust property separate and identified.
Our review searched the Florida Supreme Court, the Florida District Courts of Appeal, the Florida federal district courts, the Florida bankruptcy courts and the Eleventh Circuit on August 14, 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 14, 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.
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