Florida Probate and Trust Litigation Blog

Florida Recognizes Oral Trusts

Trusts are familiar to many as a vehicle of estate planning or to protect assets. But, when most people think of a trust, they think of a thick stack of papers with sometimes difficult-to-read language. 

In Florida, oral trusts are recognized and enforceable, although Florida does not recognize an oral Last Will and Testament. The relevant statutory provision in Florida's Trust Code is Section 736.0407, which provides:

Except as required by s. 736.0403 or a law other than this code, a trust need not be evidenced by a trust instrument but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

In many ways, an oral trust is similar to an oral contract. I doubt any estate planning lawyer would recommend that someone maintain an instrument as powerful as a trust through oral terms, (just as a lawyer would likely recommend against an oral contract) but the enforceability is the same.

It is important to note that the burden on establishing the oral trust is higher. The proponent must establish the terms of the oral trust by clear and convincing evidence.

There are limitations to oral trusts. For example, an oral trust cannot have testamentary aspects, because such a trust would not comply with Florida Statutes Section 736.0403(2)(b):

(b) The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state. For purposes of this subsection, the term “testamentary aspects” means those provisions of the trust instrument that dispose of the trust property on or after the death of the settlor other than to the settlor's estate.

Similarly, a trusts containing real property must be signed by the settlor. 

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