These are the sample trust form provisions referenced in the February 2008 article “Drafting Florida Trusts” by Powell and Klooster. Trusts & Estates editors have not edited these sample provisions either for content or for style and do not vouchsafe their efficacy. The authors offer these form provisions merely as fodder for practitioners’ consideration. These form provisions do not constitute tax advice Trusts & Estates magazine and should not be treated as such.

Form II-A

“Mandatory State Law Provisions.  Applicable state law, including, while applicable, Florida Statutes § 736.0105(2), may provide certain mandatory and non-waivable provisions that apply to each trust created under this trust instrument.  The Settlor hereby acknowledges the applicability of these provisions.” 

Form III-A

“Applicable Law.

(a) Validity.  The validity of each trust created under this trust instrument shall be determined in accordance with the laws of the State of Florida, as the Settlor is a domiciliary of the State of Florida as of the date this trust is created.

(b) Construction.  This trust instrument shall be construed in accordance with the laws of the State of Florida, as a sufficient nexus to the State of Florida within the meaning of Florida Statutes § 736.0107(1) exists as of the date this trust is created. 

(c) Administration. 

(i) Initial Applicable Law.  Initially, each trust created under this trust instrument shall be administered in accordance with the laws of the State of Florida, as a sufficient connection to the State of Florida within the meaning of Florida Statutes § 736.0108(1) exists as this trust is created. 

(ii) Waiver of Duty to Determine Appropriate Place of Administration.  Notwithstanding the provisions of Florida Statutes § 736.0108(4), with respect to each trust created under this trust instrument, the Trustee shall have no continuing duty to administer the trust at a place appropriate to its purposes and its administration. 

(iii) Transfer of Principal Place of Administration.  The Trustee, without court approval, may amend this subsection in order to change the jurisdiction whose law governs the administration of any trust created under this trust instrument and may amend any other provision of this trust instrument for the purpose of qualifying any trust under this trust instrument to be governed by the law of another jurisdiction.  The jurisdiction whose law governs the administration of any trust may be the same as the situs of such trust.  Notwithstanding the provisions of Florida Statutes § 736.0108(6), the Trustee is not required to notify the qualified beneficiaries of the trust in exercising the power granted to the Trustee by this subsection.” 1

Form IV-A

“Purpose of Trust and Intent of Settlor Regarding Trust Modification.  The Settlor appreciates that, do to changing circumstances, it may at some point in the future be desirable from the perspective of a beneficiary to seek the amendment of this trust instrument.  Notwithstanding this possibility, it is the Settlor’s intent and belief that the best interests of the trust beneficiaries are served by the current provisions of this trust instrument and it is therefore the Settlor’s hope and desire that those provisions remain in effect notwithstanding the contrary views of the trust beneficiaries.

Form IV-B

“Discretionary Termination by Trustee.  If at any time any trust created under this trust instrument is, in the sole judgment of the Trustee, of the aggregate principal value of One Hundred Thousand Dollars ($100,000.00) or less, or if the Trustee’s compensation for services rendered exceeds fifty percent (50%) of the net income of the trust, the Trustee (other than a Restricted Trustee) may, but need not, terminate the trust and distribute the trust estate to the beneficiary or beneficiaries then receiving or entitled to receive the net income from the trust, in proportionate shares.  The authority granted to the Trustee by this Section may be exercised without notice to the qualified beneficiaries of the trust.”

Form IV-C

“Merger of Trusts.  Without notice to the qualified beneficiaries, . . . insert form merger provisions.”

“Combination of Trusts.  Without notice to the qualified beneficiaries, . . . insert form merger provisions.”