Are Trust Beneficiaries Entitled to a Copy of the Trust?

Guest post from our friends at PTM Trust and Estate Law

Yes, trust beneficiaries are generally entitled to a copy of the trust instrument, as well as other information regarding a trust’s terms and administration. However, in Florida, this right is limited to the qualified beneficiaries or irrevocable trusts.

What is a Trust Instrument?

A trust is a fiduciary arrangement in which a grantor (also called a settlor or trustor) transfers property to a trustee, who holds and manages it for the benefit of one or more beneficiaries. Estate plans frequently involve the use of trusts, as they help avoid the probate process. Trusts can also be used to protect assets for future generations.

 Trusts are typically governed by written documents called a “trust instrument” or a “declaration of trust.” That written trust instrument is the document which establishes the rules that must be followed by the person in charge of the trust (called a “trustee”). The trust instrument is a document that is often (though not always) drafted by an attorney.

Once a trust becomes irrevocable (typically after the death of the person who created the trust), the trust instrument becomes an extremely important document. This is the document that determines who is entitled to receive assets from the trust. If you are entitled to an asset under the terms of the trust instrument (or if you may be entitled to an asset in the future), you are a beneficiary of the trust. The trust instrument will explain how much you are to receive and when you are to receive it. The trust instrument will also explain who is in charge of the assets until you receive them, and dictate what rules that person must follow in the meantime.

Because the trust instrument explains so much about how a trust is to be administered, it is a valuable document for any person entitled to trust assets. This is why Florida requires trustees to provide copies of the trust instrument to all qualified beneficiaries.

Duty to Inform and Account

Section 736.0813(1) of the Florida Statutes provides that a trustee has a duty to keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration. This includes:

• Providing a copy of the trust instrument upon request.
• Notifying qualified beneficiaries of the acceptance of the trust by a trustee and the trustee’s name and address.
• Providing accountings and reports regarding the trust assets, liabilities, receipts, and disbursements.

In essence, if you are a qualified beneficiary of a trust governed by Florida law and the trust is irrevocable, then you are legally entitled to request and receive a copy of the trust instrument.

Who Is a Qualified Beneficiary? 

Section 736.0103(19) of the Florida Statutes defines a “qualified beneficiary” as a living beneficiary who is (1) currently allowed to receive trust assets, (2) would be allowed to receive trust assets if someone else passed away (or had their trust interests terminated in some other manner), or (3) would be allowed to receive trust assets if the trust terminated right now.  If you fall into any of those three categories for an irrevocable trust, then you are a qualified beneficiary who is entitled to trust information under 736.0813(1).

If you are not in any of the three categories listed in the preceding paragraph, then you are likely not entitled to a copy of the trust instrument. As explained by Circuit Court of the Fourth Judicial Circuit of Florida in a 2021 Opinion: “In contrast to the UTC, which gives all beneficiaries a right to request reports and information related to the administration of the trust, the Florida Trust Code specifically restricts that right to only qualified beneficiaries. . . . Access to the fiduciary accounting of a trust and the trust instrument itself is a fundamental right of the qualified beneficiary and necessarily limits the class of persons who may bring suit.” Jennings v. Durden, 2021 Fla. Cir. LEXIS 18885, *29.

What If the Trustee Refuses to Provide a Copy of a Trust Instrument?

If a trustee fails to provide a copy of the trust instrument to a qualified beneficiary after a proper request, the beneficiary has a right to demand a copy. This demand will often be done through legal counsel. If the demand is refused or ignored, the beneficiary may need to initiate litigation against the trustee for breach of fiduciary duty. Refusal to provide a trust instrument to a qualified beneficiary is a breach of trust. 

If you believe that you are a qualified beneficiary of a trust and that the trustee is refusing to provide you with a copy of the trust instrument, you should seek out legal counsel to advise you on the next steps. It is important to rule out other options before assuming that a breach of trust has occurred, and your attorney can help you through that process. It may be that the trust instrument was lost or a good faith effort was made to deliver the instrument. On the other hand, if a breach of trust truly has occurred, your attorney can advise you through the litigation process.

Attorney Bio:

Blakely S. Moore is a Managing Partner of PTM Trust and Estate Law. Blake focuses his practice on wills, trusts, and probates.