PROBATE CORNER
Application of the Probate & Trust Codes to Testamentary Trusts
DAVID M . GARTEN
The word " jurisdiction " ordinarily refers to " subject matter " or " personal " jurisdiction , but there is a third meaning (" case " jurisdiction ), which involves the power of the court over a particular case that is within its subject matter jurisdiction . See MCR Funding v . CMG Funding Corp ., 771 So . 2d 32 ( Fla . 4th DCA 2000 ) and Tobkin v . State , 777 So . 2d 1160 ( Fla . 4th DCA 2001 ). The Probate Division of the Circuit Court has case jurisdiction over all probate matters and , with certain exceptions , trusts . Refer to Palm Beach County Adm . Order No . 6.102 . With regard to testamentary trusts , the confusion lies , not with the jurisdiction of the court , but with the application of the Probate and Trust Codes . Although the term “ testamentary trust ” is used throughout the Probate and Trust Codes , it is not referenced in § 736.0102 , F . S . as a document within the scope of the Trust Code . As more fully discussed below , application of the Probate and Trust Codes to testamentary trusts depends on the issue being litigated .
Trust Code : Testamentary trusts are referenced in §§ 736.0201 ( 5 ) ( A proceeding for the construction of a testamentary trust may be filed in the probate proceeding for the testator ’ s estate . The proceeding shall be governed by the Florida Probate Rules .), 736.1106 ( 5 ) and 736.1109 , F . S ., and by implication in §§ 736.0206 ( 2 ) and 736.1106 ( 1 )( d ), F . S .
Probate Code : Testamentary trusts are referenced in §§ 731.201 ( 12 ) and 733.815 , F . S , and by implication in § 731.201 ( 11 ), F . S .
Admission to Probate : Before a testamentary trust has legal effect , the will must be admitted to probate . See In re Young , 297 B . R . 492 ; 2003 Bankr . LEXIS 1020 ( Bankr . Tex . 2003 ); Taysum v . El Paso Nat ' l Bank , 256 S . W . 2d 172 ( Tex . App . 1952 ).
Case Law : To clarify whether the litigation involving a testamentary trust is governed by the Trust Code or the Probate Code , it is necessary to refer to the issues being litigated . The following cases are instructive :
In Feldan v . Goodman , 460 So . 2d 515 ( Fla . 3rd DCA 1984 ), a testamentary trust created under a will was established with George Feldan as the life beneficiary of the trust . The trust was funded from the residuary estate assets . Ten years after the estate was closed , Feldan filed a petition in the probate court styled " petition for revocation of order discharging executors to reopen administration of estate , for trust accounting , and other relief ." The basis of the petition was allegations of malfeasance , conflict of interest and fraud on the part of the executors and co-trustees of the testamentary trust . The trial court dismissed Feldan ’ s petition with prejudice . The appellate court affirmed with instructions . The court held that Feldan ’ s action should have been considered in the original probate proceeding because the fraud alleged as to the estate proceeding was the failure to account for assets of the estate and a misappropriation of funds of the estate without Feldan ’ s knowledge . The dismissal of the petition seeking an accounting from the trustees may have been appropriate but the dismissal should have been without prejudice thereby permitting Feldan to file an independent complaint pursuant to § 737.205 , F . S .
In Lanford v . Phemister , 2022 Fla . App . LEXIS 2612 ( Fla . 5th DCA 2022 ), decedent died in 2016 leaving certain personal property to her sister , Schell . She left the residuary of her estate , including her homestead , to a testamentary trust . Schell was the testamentary trust ' s primary beneficiary and Lanford was the contingent remainder beneficiary . The probate court determined decedent ' s home constituted exempt homestead property and that constitutional homestead protections inured to the testamentary trustee for Schell ' s benefit . The court thereafter authorized the testamentary trustee to sell the homestead property . Schell died and the residuary of decedent ' s estate passed to Lanford . The PR / testamentary trustee subsequently petitioned the probate court to disburse the homestead property ' s sale proceeds to pay for her fees , costs , and attorney ’ s fees . The probate court , over Lanford ’ s objection , granted the petition . The appellate court reversed with regard to the PR and affirmed with regard to payment of the testamentary trustee ’ s fees , costs , and attorney ’ s fees pursuant to the Trust Code .
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