Trust Decanting in Florida, and When to Amend or Restate Instead

If the trust sets out a method for amending it, follow that method. Substantial compliance is enough. If it doesn't, Florida accepts either of these (Fla. Stat. 736.0602):

a later will or codicil that expressly refers to the trust; any other method that shows the settlor's intent by clear and convincing evidence.

A signed, written amendment avoids disputes.

The signing formalities matter. The "testamentary aspects" of a revocable trust, meaning the parts that say who receives what at death, are invalid unless signed with the same formalities as a will (Fla. Stat. 736.0403(2)(b)). That means signed at the end with two witnesses. A note in the margin or an unwitnessed letter changing a beneficiary generally won't work.

If a couple created a joint trust, each spouse can generally amend or revoke as to the property they contributed. The trustee must notify the other spouse (Fla. Stat. 736.0602(2)).

An agent under a power of attorney can amend, revoke or change distributions under a trust only if two things are true. The power of attorney must specifically grant that authority, with the principal's initials or signature next to it, and the trust document must also allow the settlor's agent to make that change (Fla. Stat. 709.2202(1)(b); 736.0602(5)). Powers of attorney signed before October 1, 2011 aren't covered by these rules (709.2202(7)). Even then, the agent remains a fiduciary who must try to preserve the principal's known estate plan.

A guardian of the property can act only as the guardianship statutes allow, which generally means with court approval (Fla. Stat. 736.0602(6)). For families planning ahead, the practical point is to review the trust while the settlor can still sign. The guide for agents covers the agent's role more broadly.

An amendment changes specific sections, such as "Article 5 is replaced as follows." A restatement replaces every term of the trust in one new document but keeps the original trust's name and date. A new trust is a different entity altogether. The difference has practical effects:

Funding stays put. After a restatement, the deed, accounts and beneficiary forms still name the same trust, so nothing needs retitling. A brand-new trust would require re-funding. The trust funding guide explains why that's a project. The will still matches. A pour-over will that names the trust by its original date still points to it (Fla. Stat. 732.513). Clarity for the successor trustee. After three or four amendments, a single restated document is easier to read and less likely to contain conflicting provisions.

Hypothetical: a couple in Delray Beach signed their trust in 2009 and amended it in 2014, 2018 and 2023. Their successor trustee would have to piece four documents together. They sign a restatement with the same name and 2009 date, and every account and the deed stay as they are.

"Irrevocable" doesn't always mean frozen. After the settlor's death, a trust can be modified by unanimous agreement of the trustee and all qualified beneficiaries. A spendthrift clause or a no-amendment clause doesn't prevent it (Fla. Stat. 736.0412).

Exceptions:

trusts created before January 1, 2001; trusts that must vest within the traditional rule against perpetuities period, unless they expressly allow modification; charitable trusts while charitable interests remain.

Florida's common-law routes also remain available.

A modification under this section can change distribution or administration terms, end the trust in whole or part, or authorize acts the trust doesn't allow.

Hypothetical: a father's trust, created in 2012, requires that his daughter's share be invested only in certificates of deposit. After his death, the trustee and every qualified beneficiary sign an agreement allowing a diversified portfolio. No court is involved.

A trustee or qualified beneficiary can ask a court to modify a trust that is no longer revocable in these situations:

Purpose problems: its purposes have been fulfilled, or have become illegal, impossible, wasteful or impracticable. Unforeseen circumstances: circumstances the settlor didn't anticipate would defeat a material purpose. No remaining purpose: a material purpose no longer exists (Fla. Stat. 736.04113). Beneficiaries' interests: even without those reasons, a court can modify a trust when following its terms doesn't serve the beneficiaries' interests. It must stay as close as possible to the settlor's intent (Fla. Stat. 736.04115).

Separately, if a trust's terms were affected by a mistake of fact or law, a court can reform them to match the settlor's intent. That's true even if the wording is unambiguous, so long as the mistake is proved by clear and convincing evidence (Fla. Stat. 736.0415). Court routes cost more time and money.

"Decanting" lets a trustee who has discretion to distribute principal use that power to modify the trust, or to move assets into a second trust with updated terms. Florida's statute sets the limits (Fla. Stat. 736.04117).

Who can decant. Only an "authorized trustee," meaning a trustee who isn't the settlor or a beneficiary. A child who is both trustee and beneficiary of a parent's trust generally can't decant it alone. An independent co-trustee may be able to.

How much change.

Absolute discretion (for example, distributions for a beneficiary's "welfare" or "happiness"): the second trust can include only beneficiaries of the first trust, and it can't reduce a vested interest. Limited discretion (for example, health, education, maintenance and support): the second trust must give each beneficiary substantially similar interests.

Supplemental needs trusts. A trustee who can distribute principal to a beneficiary with a disability may decant that share into a supplemental needs trust. The trustee must believe it will further the trust's purposes, and the other beneficiaries keep substantially similar interests. This can help when a beneficiary later qualifies, or may qualify, for SSI or Medicaid. The special needs guide explains why.

Process and limits.

The trustee signs a written instrument. At least 60 days before it takes effect, the trustee sends the proposed documents to the qualified beneficiaries, the other trustees and anyone who can remove the trustee. The notice period can be waived in writing. Decanting can't increase the trustee's pay, loosen the trustee's liability, or undo a tax benefit the original trust was built to obtain.

Hypothetical: a grandmother's irrevocable trust gives the independent trustee broad discretion over principal for her grandson. Years later, the grandson develops a disability and applies for SSI. Outright distributions could affect his benefits. After giving notice, the trustee decants his share into a supplemental needs trust for him.