Complaint for Approval of Trust Decanting (Florida)

COMPLAINT FOR APPROVAL OF TRUST DECANTING

Before you use this: This is a civil complaint concerning a trust. Identify the proper defendants and arrange service under the Florida Rules of Civil Procedure. The statutory notice before decanting is a separate step and does not serve the complaint.

IN THE CIRCUIT COURT OF THE [____] JUDICIAL CIRCUIT
IN AND FOR [____________] COUNTY, FLORIDA

Case No.: [____________]
Division: [____________]

Plaintiff, [TRUSTEE NAME], as trustee of [FIRST TRUST NAME], sues Defendants and alleges:

Parties, jurisdiction, and venue

1. Plaintiff is the trustee of [FIRST TRUST NAME] (the First Trust), created by [SETTLOR] on [DATE]. Plaintiff's address is [ADDRESS].
2. Defendants and their interests in the First Trust are identified below. Describe any representation of a minor, incapacitated, unborn, or unascertained interest in an attachment.

3. This court has original jurisdiction under Fla. Stat. §§ 736.0201 and 736.0203 to determine the trustee's authority and declare rights concerning administration or distribution of the First Trust.
4. Venue is proper in this county under Fla. Stat. § 736.0204 because [STATE THE APPLICABLE STATUTORY VENUE BASIS AND FACTS].

The proposed exercise

5. The First Trust instrument and its amendments are attached as Exhibit A. The provision authorizing Plaintiff to invade principal states: “[QUOTE THE OPERATIVE TRUST TERM].” The First Trust [does / does not] expressly restrict use of Fla. Stat. § 736.04117. Explain: [FACTS].
6. Plaintiff is an authorized trustee under Fla. Stat. § 736.04117(1)(b): Plaintiff is neither the settlor nor a beneficiary and has the stated power to invade principal. The proposed exercise concerns [ALL / DESCRIBED PART] of the principal identified in Exhibit B.
7. Plaintiff proposes [TO MODIFY THE FIRST TRUST / TO APPOINT PRINCIPAL TO THE SECOND TRUST NAMED BELOW]. The proposed instrument of exercise is Exhibit C. The [proposed / existing] second trust instrument is Exhibit D. Its trustee is [NAME AND ADDRESS]. The intended effective date is [DATE].
8. Plaintiff relies on the following authority in Fla. Stat. § 736.04117 (select and complete the applicable paragraph):

☐ Absolute power — subsection (2). The quoted trust term permits invasion of principal without limitation to specific or ascertainable purposes. The second trust includes only beneficiaries of the First Trust and does not reduce any vested interest. Identify the relevant interests and comparison: [FACTS; EXHIBIT E].

☐ Other than absolute power — subsection (3). The quoted trust term limits invasion by [STANDARD]. The second trusts, in the aggregate, grant each First Trust beneficiary substantially similar beneficial interests. Identify any power of appointment and show how subsection (3)(b)–(d) is met: [FACTS; EXHIBIT E].

☐ Supplemental needs trust — subsection (4). The beneficiary with a disability is [NAME]. The proposed second trust is a supplemental needs trust for that beneficiary, includes only First Trust beneficiaries, and furthers the First Trust's purposes. Identify substantially similar interests for other beneficiaries as subsection (4)(b) requires: [FACTS; EXHIBIT E].

9. The First Trust's qualified beneficiaries, determined under Fla. Stat. § 736.0103(19), are listed in Exhibit E with each person's interest. Exhibit E compares the First Trust and proposed second trust interests and identifies [ANY / NO] vested interests.
10. The proposed exercise respects Fla. Stat. § 736.04117(5)'s federal tax benefit and S corporation stock restrictions and subsection (7)'s restrictions on compensation and liability. The material facts supporting this allegation, including any relevant tax review, are [FACTS; EXHIBIT F].
11. Under subsection (6), Plaintiff [HAS EXECUTED / WILL EXECUTE] a written instrument signed and acknowledged by Plaintiff and filed with the First Trust records. Any transfer or modification will be made through that instrument and the other steps required by law, following the court's determination.
12. Under subsection (8), Plaintiff [GAVE ON DATE / WILL GIVE BEFORE THE EFFECTIVE DATE] written notice and copies of the proposed exercise instrument and both trust instruments to all qualified beneficiaries, all First Trust trustees, any person empowered to remove or replace Plaintiff, and [THE SETTLOR / NOT APPLICABLE] if subsection (5)(c) applies. The recipients and dates are [EXHIBIT G / TO BE SUPPLEMENTED]. The effective date will be at least 60 days after the required notice unless every required recipient signs and delivers a written waiver to Plaintiff.
13. A declaration is needed because [STATE THE ACTUAL QUESTION OR DISPUTE ABOUT THE TRUSTEE'S POWER, BENEFICIAL INTERESTS, OR PROPOSED EXERCISE]. The proposed exercise serves the First Trust's purposes by [FACTS].

Request for relief

Plaintiff requests a judgment:

A. Declaring Plaintiff's power to exercise Fla. Stat. § 736.04117 under subsection [(2) / (3) / (4)] on the facts established;

B. Determining whether the proposed exercise described in Exhibits C through G satisfies the applicable beneficiary, interest, notice, and statutory restriction requirements;

C. Approving the proposed exercise to the extent shown to comply with those requirements, subject to completion of any notice period, execution and acknowledgment of the written instrument, and filing it with the First Trust records; and

D. Granting any other relief the court finds proper on the pleadings and proof.

Respectfully submitted,

Date: [__/__/____]

________________________________
[ATTORNEY NAME], Florida Bar No. [____]
[FIRM AND ADDRESS]
[PHONE] · [EMAIL]
Attorney for Plaintiff

Exhibits

• A: First Trust instrument and amendments
• B: Property proposed for appointment or modification
• C: Proposed written instrument of exercise
• D: Proposed or existing second trust instrument
• E: Beneficiary and interest comparison, including powers of appointment
• F: Facts supporting the statutory restriction allegations
• G: Statutory notice record or proposed notice plan and any signed waivers

Sources and References

• Florida Statutes § 736.04117
• Florida Statutes § 736.0201
• Florida Statutes §§ 736.0203–736.0204
• Florida Statutes § 736.0103