Form V-A

“Self-Dealing by Trustee.  With respect to each trust created under this trust instrument, the Settlor’s selection of the Trustee was made with full knowledge that the selection may create a conflict of interest between a Trustee’s fiduciary duties to a beneficiary and the Trustee’s individual account with respect to the sale, encumbrance or other transactions involving the investment or management of trust property.  In accordance with the provisions of F.S. § 736.0802(2)(a), the Settlor directs that, notwithstanding these conflicts the Trustee may:

(a) participate in the exercise of any and all rights and powers granted the Trustee with respect to the trust estate;

(b) the exercise any and all rights and powers with the respect to the retention, continuation, termination or disposition of any business entity in which the trust holds an interest regardless of the fact that the Trustee is a fiduciary or owns interests in the same business entity; and

(c) make loans to, receive loans from, sell, purchase or exchange assets in a transaction with (i) the Personal Representative of the Settlor’s estate and any trust settled by the Settlor, (ii) any one (1) or more persons related to the Settlor, and/or (iii) the Trustee as fiduciary of any other trust or estate.” 2

Form V-B

“Transactions With the Trustee’s Relatives and Affiliates.  With respect to each trust created under this trust instrument, the Trustee may make loans to, receive loans from, sell, purchase or exchange any portion of the trust estate with (a) any one (1) or more persons who may be related to the Trustee, (b) an officer, director, employee, agent or attorney of the Trustee, and/or (c) a corporation, partnership, limited liability company or other business entity in which the Trustee has a financial interest.” 3

Form V-C

“Trust Opportunities.  With respect to each trust created under this trust instrument, the Trustee may renounce any interest or expectancy of the trust in any one (1) or more business opportunities presented to the Trustee and the Trustee is not prohibited from participating in these business opportunities as a result of such renunciation.” 4

Form V-D

Language similar to the following could be considered to authorize such investments:

“Corporate Trustees and Affiliated Services.  With respect to each trust created under this trust instrument, the Settlor, by specific reference to F.S. § 736.0802(5)(e)(2), authorizes any Corporate Trustee to invest in any investment instrument owned or controlled by such Corporate Trustee or its affiliate and to engage any affiliate to render services to such trust, provided such Corporate Trustee, subject to the other provisions of this trust instrument (including Section 15.9 of Article XV hereof relating to waiver of the prudent investor rule), otherwise complies with the provisions of F.S. § 736.0802(5).  Such investments or engagements may be made without notice to the qualified beneficiaries of such trust and without application and approval by court order.  As used in this subsection, the term ‘affiliate’ shall have the meaning ascribed to such term in F.S. § 736.0103(2) and the term ‘investment instrument’ shall have the meaning ascribed such term in FS § 660.25.” 5  

Language similar to the following could be considered to prohibit such investments: 

“Corporate Trustees and Affiliated Services.  With respect to each trust created under this trust instrument, notwithstanding the provisions of F.S. § 736.0802(5), a Corporate Trustee is hereby prohibited from investing in any investment instrument owned or controlled by such Corporate Trustee or its affiliate and from engaging any affiliate to render services to such trust.  As used in this subsection, the term ‘affiliate’ shall have the meaning ascribed to such term in F.S. § 736.0103(2) and the term ‘investment instrument’ shall have the meaning ascribed such term in FS § 660.25.” 6

Form V-E

Language similar to the following could be considered to authorize double fees:

“Compensation and Expenses.  Any party who is acting in a fiduciary capacity pursuant to any trust created under this trust instrument is entitled to a fair and just compensation for services rendered in that capacity, and the party shall also be entitled to reimbursement from the trust estate for all reasonable expenses incurred in the management and distribution of the trust, all without reduction for any other compensation paid to the fiduciary, an affiliate of the fiduciary or any other person or entity.  Any person or entity affiliated with any party who is acting in a fiduciary capacity pursuant to this trust instrument with respect to any trust is entitled to receive from the trust a fair and just compensation for services rendered to the trust, without reduction for any other compensation paid the fiduciary, an affiliate of the fiduciary or any other person or entity.” 7  

Language similar to the following could be considered to prohibit double fees:

“Compensation and Expenses.  Any party who is acting in a fiduciary capacity pursuant to any trust created under this trust instrument is entitled to a fair and just compensation for services rendered in that fiduciary capacity, and that party shall also be entitled to reimbursement from the trust estate for all reasonable expenses incurred in the management and distribution of the trust.  If a fiduciary participates in the decision to invest in any investment instrument (as defined in FS § 660.25) owned or controlled by the fiduciary or an affiliate of the fiduciary or to engage any affiliate of the fiduciary to render services to the trust, the fiduciary shall credit against the compensation the fiduciary may otherwise be entitled pursuant to the provisions of this Section the amount of all fees, compensation or commissions paid from the trust estate to the fiduciary or an affiliate of the fiduciary for investing in those investment instruments or for rendering those services.” 8

Form V-F

Form acknowledging and authorizing power granted by decanting statute:

“Discretionary Distributions.  With respect to each trust created under this trust instrument, it is the Settlor’s desire that the Trustee exercise its discretionary powers to benefit the current beneficiary of the trust, rather than any remaindermen, even to the extent of terminating the trust by distributing the entire trust estate to the beneficiary at any point in time following the creation of the trust and thereby eliminating the contingent interest of any remaindermen.  Accordingly, with respect to each trust created under this trust instrument, the Trustee may disregard the interests of the remaindermen in making discretionary distributions to a current beneficiary.  If there is more than one current beneficiary, distributions may be made to all or any one or more of them in such equal or unequal proportions and amounts as the Trustee, in it’s discretion may determine, including distributing all or nothing to any one or more of the beneficiaries, and there shall be no adjustment among the beneficiaries by reason of any distribution.  The determination of the amount of net income or principal of a trust to be distributed to or for the benefit of a beneficiary is in the sole discretion of the Trustee.  Without notice to the qualified beneficiaries, a Trustee authorized to make distributions to or for the benefit of a beneficiary may, by an instrument in writing, signed and acknowledged by the Trustee and filed with the records of the trust, instead exercise the power by appointing all or part of the principal of the trust subject to the power in favor of a Trustee of another trust for the benefit of one (1) or more of the beneficiaries under the same trust instrument or under a different trust instrument, provided the exercise otherwise complies with the provisions of F.S. § 736.04117. 

Form prohibiting use of the power granted by decanting statute:

“Discretionary Distributions.  With respect to each trust created under this trust instrument, it is the Settlor’s desire that the Trustee exercise its discretionary powers to benefit the current beneficiary of the trust, rather than any remaindermen, even to the extent of terminating the trust by distributing the entire trust estate to the beneficiary at any point in time following the creation of the trust and thereby eliminating the contingent interest of any remaindermen.  Accordingly, with respect to each trust created under this trust instrument, the Trustee may disregard the interests of the remaindermen in making discretionary distributions to a current beneficiary.  If there are more than one current beneficiary, distributions may be made to all or any one or more of them in such equal or unequal proportions and amounts as the Trustee, its discretion may determine, including distributing all or nothing to any one or more of the beneficiaries, and there shall be no adjustment among the beneficiaries by reason of any distribution.  The determination of the amount of net income or principal of a trust to be distributed to or for the benefit of a beneficiary is in the sole discretion of the Trustee.  Notwithstanding the provisions of F.S. § 736.04117 to the contrary, a Trustee who is authorized to make distributions to or for the benefit of a beneficiary, shall not exercise the power by appointing all or part of the principal of the trust subject to the power in favor of a Trustee of another trust for the benefit of one (1) or more of the beneficiaries under the same trust instrument or under a different trust instrument.

Form V-G

The drafter could consider language similar to the following with respect to employment of agents:

“(n) to employ persons, including, but not limited to, attorneys, accountants, investment advisors, or agents, even if they are the Trustee, an affiliate of the Trustee, or otherwise associated with the Trustee, to advise or assist the Trustee in the exercise of any of the Trustee’s powers and to pay reasonable compensation and costs incurred in connection with such employment from the assets of the trust; to act without independent investigation on their recommendations; and, instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary; and to do all of the foregoing without notice to the qualified beneficiaries of such trust”

The drafter could consider language similar to the following with respect to delegation of authority:

“(z) at any time and from time to time, and subject to revocation at any time, to delegate the authorities, discretions and powers or any of them conferred upon a fiduciary under this trust instrument to any person or persons and/or entity or entities, without notice to the qualified beneficiaries of the trust; provided, any delegation or revocation of a delegations is to be evidenced by a written instrument, signed and delivered to the person, persons, entity or entities to whom the delegation is made;”

Form V-H

“15.23  Duty to Inform and Account.  If required by applicable law, and subject to the provisions of Section 15.24 of this Article with respect to the appointment of representatives, the Trustee shall:

(a) within sixty (60) days after acceptance of the trust, give notice to the qualified beneficiaries of the acceptance of the trust and the full name and address of the Trustee; 

(b) within sixty (60) days after the date the Trustee acquires knowledge of the creation of an irrevocable trust, or the date the Trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by death of the Settlor or otherwise, give notice to the qualified beneficiaries of the trust’s existence, the identity of the Settlor, the right to request a copy of the trust instrument, and the right to accountings;

(c) upon reasonable request, provide a qualified beneficiary with a complete copy of the trust instrument;

(d) in the case of an irrevocable trust, provide a trust accounting, as set forth in F.S. § 736.08135, to each qualified beneficiary annually and on termination of the trust or on change of the Trustee; and

(e) upon reasonable request, provide a qualified beneficiary with relevant information about the assets and liabilities of the trust and the particulars relating to administration;

provided, however, while a trust is revocable, the Trustee’s duties pursuant to this Section extend only to the Settlor.”

Form V-I

“(iii) to compromise and adjust claims arising out of any the policy or contract, upon terms and conditions as the Trustee, in the Trustee’s sole discretion, may deem best, and the decisions of the Trustee shall be binding and conclusive upon all persons beneficially interested in the trust;”

Form V-J

“Not a Fiduciary.  The powers herein granted to the Appointing Person are granted to the Appointing Person individually, not in a fiduciary capacity, and the Appointing Person is not liable to any person or entity regardless of the manner in which the Appointing Person chooses to exercise (or fail to exercise) the powers.”