What Is a Declaration of Trust?
A declaration of trust is the founding document of a trust. It is the written instrument that creates the trust, names the trustee (the person who manages the assets), identifies the beneficiaries (the people who benefit from the assets), and establishes all the rules governing how the trust operates.
In Florida, trust creation is governed by Chapter 736, Florida Statutes (the Florida Trust Code). A valid trust requires: (1) a settlor with capacity, (2) a definite beneficiary, (3) a trustee with duties to perform, and (4) trust property (the "corpus").
Key Provisions
- Trustee Powers — The declaration specifies what the trustee can and cannot do: invest funds, buy and sell real estate, make distributions, hire professionals, and borrow money.
- Distribution Standards — The rules for when and how beneficiaries receive money. A discretionary trust gives the trustee full discretion; a mandatory trust requires specific distributions.
- Successor Trustees — Who takes over if the original trustee dies, resigns, or becomes incapacitated.
- Revocability — Whether the settlor can change or revoke the trust. A revocable living trust can be modified at any time; an irrevocable trust generally cannot.
- Termination — When and how the trust ends and the remaining assets are distributed outright to the beneficiaries.
Real Estate in Trust
When Florida real property is held in a trust, the declaration of trust controls how the property is managed, whether it can be sold, and to whom the proceeds are distributed. Title companies will require a copy of the declaration (or a "Certification of Trust" under FL Statute 736.1017) before allowing a trustee to sign closing documents.
Related Terms
- Living Trust — The most common type of revocable trust
- Discretionary Trust — A trust with flexible distribution standards
- Probate — The court process avoided by properly funded trusts
Barnes Walker Trust Administration
Barnes Walker's estate planning attorneys draft comprehensive declarations of trust for Florida property owners, ensuring our clients' real estate holdings are properly titled, managed, and distributed according to their precise wishes while avoiding probate. Request a legal inquiry for assistance.
Florida Law Reference
Fla. Stat. Ch. 736 (Florida Trust Code)
The Florida Trust Code governs the creation, modification, and administration of trusts, including trustee duties, beneficiary rights, and trust termination.
Reviewed by the attorneys at Barnes Walker, Goethe, Shea & Robinson, PLLC