Decanting Gone Bad: Harrell v. Badger

Jenna G. Rubin writes about Harrell v. Badger, where the Fifth District Court of Appeal of the State of Florida invalidated a trust decanting.  The end of Ms. Rubin’s blog post, dealing with the decanting issue, is as follows:

The Appellate Court reversed, holding that pursuant to F.S. 736.04117, a trustee must provide notice to all qualified beneficiaries of his intent to invade the principal of the trust at least 60 days prior to the invasion.  Since the siblings had an interest in the principal remaining after their brother’s death, the Court held that they qualified as “qualified beneficiaries” under F.S. 736.0103(16).  Therefore, the trustee improperly exercised his power to invade the principal of the trust when he failed to notify the siblings.

The Court also held that the trustee failed to meet the requirements of F.S. 736.04117(1)(a) by decanting the trust principal to a trust that did not include only the beneficiaries of the first trust, since the pooled trust provided a contingent remainder interest to other beneficiaries.

Because the Court’s ruling about the improper decantation invalidated the trial court’s findings about the sufficiency of the siblings’ evidence, the Court also reversed the trial court’s order imposing attorneys’ fees against the siblings.

Read full post at: Rubin on Probate Litigation: Harrell v. Badger

Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.

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