Borrowed wholesale
An action against a trust director for breach of trust must be commenced within the same limitation period for an action for breach of trust against a trustee in a like position and under similar circumstances under s. 736.1008 ...
Section 736.1413(1), Florida Statutes. The omitted words are a cross-reference gloss the Part repeats throughout.
Part XIV does this repeatedly. A director owes the same duties as a trustee under section 736.1408, may assert the same defences under section 736.1414, and is sued within the same period under this one. The symmetry is deliberate. A director is a fiduciary and is treated like one at every stage.
The period itself comes from section 736.1008, which is where the real content lives, including the four year default and the much shorter period a limitation notice can produce.
The part worth pausing on
A trust accounting or any other written report of a trustee or a trust director has the same effect on the limitation period for an action against a trust director for breach of trust that such trust accounting or written report would have under s. 736.1008 ... in an action for breach of trust against a trustee in a like position and under similar circumstances.
Section 736.1413(2), Florida Statutes.
Read the phrase of a trustee or a trust director. The document that shortens the period against a director need not have come from the director.
That is a real consequence for a beneficiary. A trustee sends an accounting with a limitation notice. The six month period begins. When it expires it may bar not only claims against the trustee but claims against a director who sent nothing and may never have communicated with the beneficiary at all.
Whether the accounting adequately disclosed the director’s conduct is then the battleground, because section 736.1008 turns on what a trust disclosure document adequately discloses. But the mechanism is available, and it is available to someone who did not use it.
The tactical position of a director
A trust director occupies an unusual position. It owes no general duty to account. Under section 736.141 a qualified beneficiary gets information from a director only on written request. The drafters intended nothing more.
The draftspersons intended that a trust director have no other direct duty to account or provide information to a beneficiary (although a trust director may in its discretion issue a trust disclosure document to commence the statute of limitations for breach of trust).
Rubin and Rubin, The Florida Bar Journal, March/April 2022.
The parenthetical is the whole strategy. A director need not tell a beneficiary anything, and may choose to, precisely in order to start a clock running against them.
For a director that is straightforward risk management. For a beneficiary it means a document arriving from a protector who has never communicated before is not a courtesy, and the date on it matters.
What to do about it
If you are a beneficiary of a directed trust and receive an accounting or a written report from anyone, read it for a limitation notice and diary the date. The period can be as short as six months, it can run in favour of people who did not send it, and nothing obliges anyone to remind you.
If you hold a power of direction, the position is the reverse. Issuing a disclosure document is voluntary, and it converts an indefinite exposure into a defined one.
No court has construed this section
Our review found no citing decision, with a Florida court filter and nationwide, at every precedential status.
The question a case would have to answer is what a trustee’s accounting must contain to adequately disclose a director’s conduct, given that the trustee has no duty to monitor the director under section 736.1411. A trustee that is not watching may not be able to disclose, and whether a document that says little about the director can nonetheless start the director’s clock is undecided.