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Separating the “Trustee” from the Person Serving as Trustee


One of the more difficult legal concepts with respect to trusts is that the “trustee” is not the same thing as the person who is serving as trustee. In other words, if you are serving as trustee over a family member’s trust, you are acting in a specific legal capacity. If someone sues you individually, they are not necessarily suing you as the trustee, and vice versa.

Here is an illustration of what we are talking about. In a recent decision from the Florida Second District Court of Appeals, Hett v. Barron-Lunde, that court overturned a trial judge’s decision compelling a trustee to turn over certain documents as part of an ongoing civil lawsuit. The problem was that the trustee was sued as an individual, not as trustee, and the appeals court said the judge’s decision was not appropriate.

The underlying lawsuit involves the daughter of a now-deceased man named Barron. For the last 20 years of his life, Barron had a relationship with a woman named Hett. Hett retained an estate planning lawyer to setup a trust for Barron’s benefit.

Barron’s daughter alleged Hett actually used the trust to steal roughly $200,000 from her father. She filed a lawsuit in Florida state court to recover the money. But the lawsuit only named Hett individually, not her as trustee or the trust itself.

Nevertheless, the daughter also served “nonparty subpoenas” on the financial institutions that held the trust’s accounts, as well as the law firm that prepared the trust. Essentially, the daughter wanted access to “any and all documentation” related to the trust. The trial court issued the subpoenas over Hett’s objection.

Hett filed an immediate appeal with the Second District. She maintained the daughter had no legal right to issue the subpoenas because the trust was not a party to the lawsuit, and any communications with the law firm were protected by attorney-client privilege. The Second District largely agreed with these points and quashed the third-party subpoenas.

As the appeals court explained, “The general rule under Florida law is that a trustee is an indispensable party to proceedings affecting trust property.” The trustee is also “a separate party distinct from the individual party serving as trustee.” The daughter therefore should have named the trust and the trustee, acting in that capacity, as defendants in the lawsuit.

With respect to attorney-client privilege, the trial court never addressed the issue. This was a mistake, the Second District said. While it is permissible to “compel the disclosure of records” in spite of the privilege, at a minimum the trial judge needed to conduct an in-chambers examination of the requested documents first, which did not occur here.

Speak with a Florida Trust Litigation Lawyer Today

Trust litigation is often a very complex and emotional affair, especially when parties are litigating over the assets of a deceased loved one. If you need legal advice in handling such matters from an experienced Fort Myers trust litigation attorney, contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a confidential consultation.


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