A section that looks like an option and is drafted as a duty
In the case of a power to make distributions, if the trustee determines that the governing instrument contains provisions that are more restrictive than s. 736.1204(2), or if the trust contains other powers, inconsistent with the provisions of s. 736.1204(3) that specifically direct acts by the trustee, the trustee shall notify the Attorney General by delivery of notice when the trust becomes subject to this part. Section 736.1204 does not apply to any trust for which notice has been given pursuant to this section unless the trust is amended to comply with the terms of this part.
Section 736.1205, Florida Statutes.
The catchline calls it notice that the Part does not apply, which invites you to read it as a trustee’s choice. It is not drafted that way. The verb is shall.
Where either trigger is present, the trustee is required to notify the Attorney General. The consequence, that section 736.1204 ceases to apply, follows from the notice rather than being the object of a decision.
The two triggers
More restrictive distribution provisions. The first trigger arises in the case of a power to make distributions, where the trustee determines that the instrument is more restrictive than section 736.1204(2). That subsection requires distributions to be made so as not to incur tax under the federal mandatory payout rule. An instrument that constrains distributions more tightly than that creates a genuine conflict. The trustee cannot both obey the document and satisfy the statute.
Inconsistent powers that direct acts. The second trigger is narrower than it first appears. It is not enough that the trust contains powers inconsistent with the four prohibitions in section 736.1204(3). Those powers must specifically direct acts by the trustee. A permissive power that the trustee simply need not exercise does not create the same conflict as a direction that the trustee must do something the statute forbids.
Notice also who makes the assessment on the first trigger, if the trustee determines. The statute puts the judgement in the trustee’s hands, without saying what happens if the determination is wrong.
What the notice does
The effect is complete and automatic. Section 736.1204 does not apply to the trust at all. Not the four prohibitions, not the payout rule, and not the general fiduciary duty in subsection (1) about preserving tax benefits.
The only route back is amendment. The section applies again if the trust is amended to comply with the terms of this part. And section 736.1206 is the provision that lets a trustee make that amendment without going to court.
One thing the notice emphatically does not do. It does not affect federal law. Switching off a Florida statute that imports the private foundation rules does not switch off the private foundation rules. The foundation remains subject to the Internal Revenue Code and to the excise taxes that enforce it. What changes is whether those requirements are also duties owed by the trustee under Florida law.
How the notice must be given
By delivery of notice, which is a defined term. Under section 736.1201(2) it means a commercial delivery service requiring a signed receipt, or any form of mail requiring a signed receipt.
Email will not do, and ordinary mail will not do. That is stricter than the general notice provision in section 736.0109, which permits a good deal, and the reason is presumably that this notice has a substantial legal effect and someone will one day need to prove it was given.
The two gaps, and they are real
The section says notice is to be given when the trust becomes subject to this part. For most trusts that moment passed decades ago. The statute sets no deadline, provides no mechanism for late notice, and does not say whether a notice given years afterwards is effective.
It also states no consequence for failing to give notice at all. The natural reading is that section 736.1204 simply continues to apply, so the trustee is bound by duties the instrument conflicts with, which is an uncomfortable position but not a penalty. Whether failing to notify is itself a breach of trust is not addressed.
Both questions would ordinarily be settled by case law. There is none. Our review found no decision citing this section, and because that was true of every section in this Part we verified the search before reporting it, confirming that the same query returns hits for sections that have case law.