Will and Trust Modifications

Florida Will and Trust Modifications

In order to protect the interests and intent of the original author, laws often carefully restrict the ability of individuals to modify the terms of a trust or will. While such protections are important, they can present significant challenges when changes in circumstances make it necessary to reform or modify a will or trust. Board Certified Fort Lauderdale estate and trust litigation attorney Mark R. Manceri has over 25 years of experience assisting Florida residents in navigating the complexities of wills and trusts, and can represent you in furtherance of carrying out the interests and intent of the testator and the beneficiaries.

Modifying Irrevocable Trusts

Under Florida law, irrevocable trusts typically cannot be canceled or changed after they are created without the consent of all parties involved. Yet, many creators and beneficiaries find that after several years, the irrevocable trust is no longer serving the purposes it was originally intended to. For this reason, laws have been passed in Florida to allow the modification of trusts in very particular circumstances. These modifications are uncommon and require complicated judicial proceedings before they can be implemented. For this reason, it is important to contact a qualified estate litigation attorney if you are considering requesting modification.

Modification Consistent With the Intent of the Creator

Under Florida Statute Section 736.04113, which is part of the updated Florida Trust Code, trustees and beneficiaries of a trust may seek modification of a trust through a judicial proceeding when:

  • The purpose of the trust has been fulfilled or has become illegal or impossible;
  • Circumstances not anticipated by the creator have affected the purposes of the trust or defeated the purpose; or
  • The purpose of the trust no longer exists.

If a trustee or beneficiary can show that one of these circumstances is true, and that a modification would not be inconsistent with the intent of the original creator, the court can amend or modify the trust as needed, including terminating the trust if necessary.

Modification in the Best Interests of the Beneficiaries

Modification is also allowed under Florida Statute Section 736.04115, which permits a trustee or beneficiary to petition for modification through a judicial proceeding where compliance with the terms of the trust is not in the best interests of the beneficiaries. The court must consider the circumstances and purpose of the trust, and is required to examine whether the modifications conform to the intents of the original creator. Additionally, a trust may not be modified for the best interests of the beneficiaries where modifications have been expressly prohibited.

Reformation or Modification of a Will

While the author of a will may modify the will as he or she wishes during a lifetime, after death the will is generally treated as unalterable. Only in very limited circumstances can a will be reformed or modified after the testator is deceased.

Although this may sound like a simple process, Florida Statute 732.615, which became effective on July 1, 2011, requires clear and convincing proof of a mistake in order to avoid abuse or improper reformations of a will. Under the Statute, reformation is allowed if an interested person shows by “clear and convincing evidence” that terms of the will and the testator’s intent were “affected by a mistake of fact or law.” The statute also contains a provision allowing the court to consider relevant evidence even if it seems to contradict the meaning of the will. “Clear and convincing” is a higher barrier than a preponderance of the evidence.

While this reformation can be very helpful if you believe that a loved one may have made a fundamental mistake in their will, it may also lead to the prospect of expensive and emotional litigation where another individual contests a will that you believe to be accurate. If you have reason to believe that a will is inaccurate or are worried that others intend to make such claims, you should contact an estate litigation attorney as soon as possible.

In larger estates, Florida Statute 732.616 allows for modification of a will to carry out the testator’s tax objectives, which can result in significant tax savings or reductions.

Litigating the Accuracy of Wills and Trusts

Fort Lauderdale wills, trusts, and estates lawyer Mark R. Manceri is dedicated to providing you high quality legal advice on issues related to wills and trusts. Board Certified by The Florida Bar in Wills, Trusts, and Estates, he understands how to navigate these complicated court proceedings. If you are involved in a reformation or modification of a will or trust, contact us through this website or call our office at (954) 491-7099 to schedule a consultation.

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