Florida Statute 736.0402
“Requirements for creation”
What it means
A Florida trust exists only if five things line up: the settlor has capacity, the settlor indicates intent to create a trust, the trust has a definite beneficiary, the trustee has duties to perform, and the same person is not the sole trustee and sole beneficiary.
The definite-beneficiary requirement has exactly three exceptions: a charitable trust, a trust for the care of an animal (§736.0408), and a noncharitable purpose trust (§736.0409). A beneficiary is definite if ascertainable now or in the future, within the rule against perpetuities.
- Five requirements: settlor capacity, settlor intent, a definite beneficiary (or exception), trustee duties, and no merger of sole trustee with sole beneficiary.
- Exceptions to the definite-beneficiary rule: charitable trusts, animal trusts (§736.0408), and noncharitable purpose trusts (§736.0409).
- A beneficiary is definite if ascertainable now or in the future, subject to the rule against perpetuities (§689.225).
- A trustee's power to select beneficiaries from an indefinite class is valid — but if not exercised within a reasonable time, it fails and the property passes as if the power had never been conferred.
How it plays out
Most homemade-trust problems trace back to this list. An arrangement where one person is the only trustee and the only beneficiary is not a trust; a document naming no ascertainable person and no charitable purpose fails unless it fits a statutory exception. When we review a trust after a death, §736.0402 is the first checkpoint — was a trust validly created at all? — because everything else in Chapter 736 assumes the answer is yes.
Where this shows up
Pages on this site where § 736.0402 does real work:
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