The problem this solves
A trustee walks into a bank to open an account, or to a closing to sell trust property, and is asked for the trust. The whole trust. Which means handing a stranger a document that says what each of your children receives, and on what conditions.
This section is the answer. Instead of the instrument, the trustee may furnish a certification of trust setting out eight things.
- That the trust exists, and the date the instrument was executed.
- The identity of the settlor.
- The identity and address of the currently acting trustee.
- The powers of the trustee.
- Whether the trust contains any powers of direction, and if so the current trust directors, which trustee powers are subject to direction, and whether the directors have authorised the proposed transaction.
- Whether the trust is revocable or irrevocable, and who holds any power to revoke.
- The authority of cotrustees to sign, and whether all or fewer than all are required.
- The manner of taking title to trust property.
Any trustee may sign it, and it must state that the trust has not been revoked, modified or amended in a way that would make the certification incorrect.
The sentence that does the work
A certification of trust need not contain the dispositive terms of a trust.
Section 736.1017(4), Florida Statutes.
Eight words of substance, and they are why the section exists. Who gets what is not the bank’s business. The institution needs to know that the trust exists, who may act for it, and what they may do. It does not need to know the shares.
The eight facts listed above are all about authority. Not one of them concerns entitlement.
What the recipient may still demand
There is a counterweight, and it is narrower than institutions often assume.
A recipient of a certification of trust may require the trustee to furnish copies of any excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction.
Section 736.1017(5), Florida Statutes.
Read the limits. Excerpts, not the document. Excerpts that designate the trustee and confer the power to act. And the power to act in the pending transaction, not in general.
A request for the complete instrument is not what subsection (5) authorises. Neither is a request for the distribution provisions, which by definition do not designate a trustee or confer a power to act.
Why a bank should be willing to take one
Institutions ask for everything because they are worried about liability. The statute addresses that directly, and a trustee meeting resistance can point to it.
A person who acts in reliance on a certification of trust without knowledge that the representations contained in the certification are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certification.
Section 736.1017(6), Florida Statutes.
And a person who in good faith enters into a transaction in reliance may enforce that transaction against the trust property as if the representations were correct. So the recipient is protected twice, with no liability for acting and a deal that stands even if the certification was wrong.
Subsection (6) has a second sentence that is easy to miss and useful to know.
Knowledge of the terms of the trust may not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying on the certification.
Section 736.1017(6), Florida Statutes, second sentence.
Having the document in a file somewhere does not by itself defeat reliance. That removes the argument that an institution which once received a copy is fixed with knowledge of everything in it.
The 2021 addition
Paragraph (1)(e), on powers of direction and trust directors, was added in 2021 by the legislation that created Florida’s directed trust regime. A directed trust splits the trustee’s role, with someone else holding power over investments or distributions, and a third party dealing with such a trust needs to know whether the person in front of them can actually bind it.
Note how far that paragraph goes. It requires not only the identity of the directors and which powers are subject to direction, but whether the directors have directed or authorised the specific transaction for which the certification was issued.
No Florida court has construed this section
A search returns no citing documents, at any precedential status, in any Florida court or the Eleventh Circuit.
So the boundary of subsection (5) is undecided. If a bank demands the full instrument and the trustee refuses, no Florida decision says who is right. In practice the dispute is resolved commercially rather than judicially, which is probably why there is no case law, but it does mean a trustee holding the line is relying on the text alone.
Subsection (8) is worth remembering on the other side. This section does not limit anyone’s right to a copy of the trust where the law requires it to be furnished, or in a judicial proceeding concerning the trust. Litigation is a different world, and a certification will not keep the document out of it.