The heading and the sentence point in opposite directions
This section is titled Duty to ascertain marketable title of trust real property. Here is what it actually says.
A trustee holding title to real property received from a settlor or estate shall not be required to obtain title insurance or proof of marketable title until a marketable title is required for a sale or conveyance of the real property.
Section 736.08105, Florida Statutes. Enacted in 2006 and never amended since.
The catchline announces a duty. The sentence says the trustee shall not be required to do the thing, until a triggering event. It is a permission, or more precisely a deferral, wearing the label of an obligation.
We raise it because it matters to anyone reading the Code by scanning section headings, which is how most people navigate a statute they do not know. A reader who takes the catchline at face value would conclude that a Florida trustee must promptly establish marketable title to every piece of trust real estate, and would be wrong. In Florida the catchline is a label attached for convenience and the enacted sentence is what governs.
It does not cover every piece of trust real estate
The relief is limited to real property received from a settlor or estate. That is the ordinary case, a house or land put into the trust by the person who created it, or passing into it from a probate estate. It is not every case.
Where a trust buys real property, this section does not apply, and there is no statutory reason for the trustee to be casual about title. The prudence expected of a trustee acquiring an asset, and the requirements of any lender involved, apply in the usual way.
What ends the reprieve, and why the timing is awkward
The deferral runs until a marketable title is required for a sale or conveyance. That is not a date. It is an event, and it is an event controlled by somebody else, because in practice what requires marketable title is a buyer, a buyer’s lender, or a title underwriter.
The practical consequence is worth stating plainly, because the statute is doing a trustee a favour that can turn into a problem. A title defect on trust property does not have to be addressed while the property is held. So it usually is not. It surfaces instead when the trust is under contract, with a closing date, a buyer who can walk, and beneficiaries expecting distribution. A defect that would have been straightforward to cure over months has to be cured in weeks.
Nothing in the section prevents a trustee from dealing with title earlier. It says the trustee is not required to. A trustee who knows the trust will eventually sell, and who has any reason to think the title is imperfect, is not obliged to wait and is often better off not waiting. That judgment sits under the general duties in section 736.0809 and section 736.0801 rather than under this section.
No Florida court has construed this section
Our review found no decision citing section 736.08105 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.
The open questions follow the shape of the section. Whether a trustee who knows of a title defect and does nothing until a sale is protected by this section or exposed under the general duty to protect trust property. Whether the cost of curing a defect that could have been addressed earlier falls on the trust or on the trustee. And what happens where the defect turns out to be incurable, so that property the trust has held for years cannot be sold at all.
Frequently Asked Questions
Does a Florida trustee have to get title insurance on trust real estate?
Not while simply holding it. Section 736.08105 provides that a trustee holding title to real property received from a settlor or estate shall not be required to obtain title insurance or proof of marketable title until a marketable title is required for a sale or conveyance of the real property.
Why does the section heading say “Duty to ascertain”?
That is a genuine oddity. The catchline is worded as though the section imposes an obligation and the operative sentence removes one. In Florida the catchline is a label rather than part of the enacted text, so the sentence governs. It is worth knowing because a reader scanning headings would take away the opposite of what the section says.
Which property does this cover?
Only real property received from a settlor or an estate. Property the trust acquires another way, such as by purchase, is outside the section, and the ordinary expectations of a purchaser and a lender apply to it.
When does the trustee have to deal with title?
When marketable title is required for a sale or conveyance. In practice that is when a buyer’s lender or title underwriter requires it, which is why title defects in trust property tend to surface at the worst moment, under contract and against a closing date.
Has any court construed this section?
No, on our review. No decision in the Florida state courts, the Florida federal district or bankruptcy courts, or the Eleventh Circuit cites it.
Common Situations
A house that came into the trust from the settlor. Squarely within the section. Nothing must be done about title until a sale requires it.
Property the trust bought. Outside the section, and the ordinary expectations about title apply.
A sale under contract with a title problem. This is where the deferred question arrives, usually on a deadline.
A trustee who suspects a defect now. The section permits waiting. It does not require it, and the general duties may point the other way.
Sources of Law
- Section 736.08105, Florida Statutes (2025). Enacted by s. 8, ch. 2006-217, and never amended since.
- Section 736.0809, Florida Statutes, on taking control of and protecting trust property.
- Section 736.0801, Florida Statutes, the general duty to administer the trust.
- Reading note: the catchline of this section describes a duty and the operative sentence removes a requirement. We flag the mismatch rather than adopting the catchline’s framing, because a reader navigating by headings would otherwise take away the opposite of what the section provides.
- 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.
