The word “jurisdiction” ordinarily refers to “subject matter” or “personal” jurisdiction, but there is a third meaning (“case” jurisdiction) which involves the power of the court over a particular case that is within its subject matter jurisdiction. See MCR Funding v. CMG Funding Corp., 771 So. 2d 32 (Fla. 4th DCA 2000) and Tobkin v. State, 777 So. 2d 1160 (Fla. 4th DCA 2001). The Probate Division of the Circuit Court has case jurisdiction over all probate matters and, with certain exceptions, trusts. Refer to Palm Beach County Adm. Order No. 6.102. With regard to testamentary trusts, the confusion lies, not with the jurisdiction of the court, but with the application of the Probate and Trust Codes. Although the term “testamentary trust” is used throughout the Probate and Trust Codes, it is not referenced in §736.0102, F.S. as a document within the scope of the Trust Code. As more fully discussed below, application of the Probate and Trust Codes to testamentary trusts depends on the issue being litigated.
Trust Code: Testamentary trusts are referenced in §§736.0201(5) (A proceeding for the construction of a testamentary trust may be filed in the probate proceeding for the testator’s estate. The proceeding shall be governed by the Florida Probate Rules.), 736.1106(5) and 736.1109, F.S., and by implication in §§736.0206(2) and 736.1106(1)(d), F.S.
Probate Code: Testamentary trusts are referenced in §§731.201(12) and 733.815, F.S, and by implication in §731.201(11), F.S.
Admission to Probate: Before a testamentary trust has legal effect, the will must be admitted to probate. See In re Young, 297 B.R. 492; 2003 Bankr. LEXIS 1020 (Bankr. Tex. 2003); Taysum v. El Paso Nat’l Bank, 256 S.W.2d 172 (Tex. App. 1952).
Case Law: To clarify whether the litigation involving a testamentary trust is governed by the Trust Code or the Probate Code, it is necessary to refer to the issues being litigated. The following cases are instructive:
In Feldan v. Goodman, 460 So. 2d 515 (Fla. 3rd DCA 1984), a testamentary trust created under a will was established with George Feldan as the life beneficiary of the trust. The trust was funded from the residuary estate assets. Ten years after the estate was closed, Feldan filed a petition in the probate court styled “petition for revocation of order discharging executors to reopen administration of estate, for trust accounting, and other relief.” The basis of the petition was allegations of malfeasance, conflict of interest and fraud on the part of the executors and co-trustees of the testamentary trust. The trial court dismissed Feldan’s petition with prejudice. The appellate court affirmed with instructions. The court held that Feldan’s action should have been considered in the original probate proceeding because the fraud alleged as to the estate proceeding was the failure to account for assets of the estate and a misappropriation of funds of the estate without Feldan’s knowledge. The dismissal of the petition seeking an accounting from the trustees may have been appropriate but the dismissal should have been without prejudice thereby permitting Feldan to file an independent complaint pursuant to §737.205, F.S.
In Lanford v. Phemister, 2022 Fla. App. LEXIS 2612 (Fla. 5th DCA 2022), decedent died in 2016 leaving certain personal property to her sister, Schell. She left the residuary of her estate, including her homestead, to a testamentary trust. Schell was the testamentary trust’s primary beneficiary and Lanford was the contingent remainder beneficiary. The probate court determined decedent’s home constituted exempt homestead property and that constitutional homestead protections inured to the testamentary trustee for Schell’s benefit. The court thereafter authorized the testamentary trustee to sell the homestead property. Schell died and the residuary of decedent’s estate passed to Lanford. The PR/testamentary trustee subsequently petitioned the probate court to disburse the homestead property’s sale proceeds to pay for her fees, costs, and attorney’s fees. The probate court, over Lanford’s objection, granted the petition. The appellate court reversed with regard to the PR and affirmed with regard to payment of the testamentary trustee’s fees, costs, and attorney’s fees pursuant to the Trust Code.
In Gundlach v. Gundlach, 2022 Fla. App. LEXIS 3570 (Fla.4th DCA 3/25/22), The decedent’s will named his two sons, William (“appellant”) and Jon, as co-personal representatives of his estate and Jon as the trustee of a testamentary trust. The testamentary trust contained a provision that appellant no longer be married in order to receive an outright bequest. Appellant filed an Amended Petition for Construction and Declaration of Rights (“petition”) in the estate seeking, in relevant part, construction and a declaration of rights under the testamentary trust. Appellees moved to strike the petition arguing that while the petition included reference to construction of provisions of the Trust, the crux of the petition sought to declare specific provisions of the will invalid and was therefore untimely pursuant to §733.212(3) because it was not filed within three months of appellant’s receipt of the notice of administration. The trial court dismissed the petition with prejudice as untimely. The appellate court reversed and remanded for further proceedings. The court held that the trial court order was improper because appellant’s challenge to “all or part of the testamentary trust” created by the will did not amount to a challenge to the “validity of the will”. The court reasoned: “Applying our analysis in Tendler [Tendler v. Johnson, 332 So. 3d 521 (Fla. 4th DCA 2021)], appellant’s petition in this case likewise did not challenge the “validity of the will” within the meaning of section 733.212(3). As discussed above, appellant’s petition sought (1) a determination as to the validity of all or part of the testamentary trust; (2) construction of the testamentary trust; and (3) a declaration of rights under the testamentary trust pursuant to section 736.0201(4)(a), (e)-(f), Florida Statutes (2021). Appellant’s petition challenged the effectiveness of the provision of the will concerning the condition regarding his marriage. However, pursuant to Tendler, such a challenge in appellant’s petition to “all or part of the testamentary trust” created by the will did not amount to a challenge to the “validity of the will” as used in section 733.212(3), which Tendler explains refers to the technical requirements for a will to be probated. As such, guided by the analysis in Tendler, we hold that section 733.212(3) does not bar appellant’s petition. Accordingly, the probate court erred in dismissing appellant’s petition as untimely under section 733.212(3).”
In Estate of Herskowitz, 338 So. 2d 210 (Fla. 3rd DCA 1976), the decedent left an estate in excess of $500,000 willed to a testamentary trust for the benefit of his minor sons. The will was admitted to probate and Sam Smith, Esq. was appointed guardian ad litem for the boys. Smith filed a petition asking the probate court to require qualification of the trustee and/or funding of the trust to require the trustee to make reasonable support payments for the boys on the ground that the trust is a support trust necessitating the payment of such funds by the trustee. The PR/trustee filed objections alleging that the will grants sole and absolute discretion in him as trustee for the payment of trust funds and this exercise of discretion is beyond the jurisdiction of the court. The trial court granted the petition. On appeal, the PR/Trustee argued that the court lacked jurisdiction to require him, as PR, to make a partial monetary distribution from the estate to the trust and then require him, as trustee, to make support payments where the trust had not come into being, was not funded and was not registered or had come into being under Florida law [Ch.737]. The appellate court affirmed holding that: (1) the court had jurisdiction to construe the trust instruments and order support payments pursuant to §737.201(1)(c), F.S.; (2) by filing a notice of intention of service as trustee and objections to the petition for partial distribution and by appearing at the final hearing, the PR/Trustee submitted himself to the jurisdiction of the court; (3) a valid trust was established; and (4) the registration provision of §737.101 is not mandatory and was waived.
In Lumbert v. Estate of Carter, 867 So. 2d 1175 (Fla. 5th DCA 2004), the decedent’s will set up a testamentary trust to distribute the assets of the estate. The decedent’s daughter, Lisa, was to receive distributions as she attained benchmark ages: one-third at age 35; one-half of the balance at age 40; and the remainder at age 45. In the event that Lisa did not survive to those ages, and if she did not exercise a power of appointment given to her under the testamentary trust (which she did not) the balance of the trust was to be distributed per stirpes to her lineal descendants and failing that to the deceased’s brothers and sister. Lisa was appointed to serve as the personal representative after her mother died. Lisa died 14 months later at the age of 41. At that time, due to a delay in the administration of the estate, Lisa had only received a $30,000.00 distribution from the trust; the balance of $1.5M was in the process of being administered. The trial court ruled that Lisa’s estate was only entitled to $30,000.00. The appellate court reversed and remanded for further proceedings. The court, citing §732.514, F.S., held that the provisions of the testamentary trust clearly mandated that Lisa’s proportional shares of the trust corpus vested instantly upon her attaining the designated ages. Since at the time Lisa died she was not yet 45, only the remaining approximately one-third of the trust assets to which she was not entitled to have distributed were to be distributed to the deceased’s brothers and sister.