Four requirements, and they escalate
(1) A trustee shall keep clear, distinct, and accurate records of the administration of the trust.
(2) A trustee shall keep trust property separate from the trustee’s own property.
(3) Except as otherwise provided in subsection (4), a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.
(4) If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts.
Section 736.0810, Florida Statutes. Enacted in 2006 and never amended since.
Subsection (2) is the rule everybody has heard of. It is flat. There is no threshold below which mixing is acceptable, no exception for a few days while a transfer clears, and no allowance for a trustee who is confident they can reconstruct the position later.
The requirement almost nobody satisfies
Subsection (3) is where this section stops being obvious. It is not enough for the trustee to keep the property separate and to know which is which. The trust’s interest has to appear in records maintained by a party other than a trustee or beneficiary.
That means the outside world’s paperwork. The bank’s account title. The brokerage registration. The deed on file with the county. The share register. A trustee who opened a second personal account, deposited only trust money into it, and kept perfect notes has complied with subsection (2) and failed subsection (3), because nothing in anyone else’s records says the money belongs to a trust.
The phrase to the extent feasible is the only softening, and it is doing narrower work than a trustee might hope. Retitling a bank account is feasible. So is recording a deed. What the qualifier is aimed at is property where third party records simply do not exist to be marked.
Subsection (4) then carves out a practical exception. A trustee may invest the property of two or more trusts as a whole, but only where records clearly indicate the respective interests. Pooling is permitted because the recordkeeping makes it traceable, which is the same principle running through the whole section.
The one case, and what it does and does not decide
Our review located a single document citing this section, and only after asking for every precedential status. Under CourtListener’s default view it does not appear at all.
In Lacava v. Oleksyk, a federal district judge in Florida listed the section among the trustee’s duties.
Additionally, the trustee has duties to administer the trust prudently, § 736.0804, to avoid commingling funds, § 736.0810, and to provide an accounting of trust property to qualified beneficiaries, § 736.08135.
Lacava v. Oleksyk, No. 8:22-cv-02422 (M.D. Fla. Sept. 15, 2023), an order on cross motions for summary judgment. A trial level federal order, not binding appellate authority, and no reporter citation has issued.
That is the whole of the court’s engagement with the section number. It is a bare citation. The court does not quote the statute, does not construe it, and never returns to it. So no court has said what this section requires.
What the court did do is find commingling on the facts, and those findings are worth reading because they show the shape these disputes take.
Defendant further breached her fiduciary duty by commingling part of the trust res with her personal funds. In 2020, Defendant transferred $14,000 from the trust res to her personal account. ... The transfer was identified only in case discovery, and the money remains commingled and unsegregated in Defendant’s personal investment account as of the hearing on the instant motion.
Defendant’s commingling of the trust res with her personal funds became known only through discovery in this case.
Lacava v. Oleksyk, No. 8:22-cv-02422 (M.D. Fla. Sept. 15, 2023).
Two things stand out. The money was still commingled at the hearing, years after the transfer, which tells you how these situations persist once they start. And it emerged only in discovery. A beneficiary reading annual statements would not have seen it, which is why the accounting requirements in section 736.08135 and the right to information under section 736.0813 matter so much in practice.
We are being careful about one thing here. That opinion also criticises the trustee’s records as casual, partial and incomplete. That discussion is tied to the accounting duty in section 736.08135, not to this section, and we are not going to claim it for subsection (1) when the court did not.
What is unconstrued, which is all of it
Because the only citation is a bare one, every operative question under this section is open in Florida. What clear, distinct and accurate records means in subsection (1), and whether it is a different standard from the accounting content rules. How far to the extent feasible extends in subsection (3), and whether an account titled in a trustee’s own name ever satisfies it. Whether commingling is a breach in itself, sounding in damages without more, or only where loss follows. And whether a trustee who commingles and then restores the property has cured the breach or merely mitigated it.