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How Much Are Current And Remainder Beneficiaries Entitled To?

By Juan C. Antúnez on October 28, 2004
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There is often an inherent conflict of interest between the current and remainder beneficiaries of a trust. There are two ways to address that issue: provide for contemporaneous trust distributions to family members or explicitly override the trustee’s duty of impartiality between current and remainder beneficiaries under F.S. 736.0803. For example, if the trust is created for the life-time support of a client’s child or surviving spouse but the client also wants to allow trust assets to be distributed to each child’s own family, the following clause should be considered:

Distributions to Family. The Trustee shall pay or apply such sums of income or principal from each beneficiary’s separate trust as in the Trustee’s discretion are necessary or advisable for that beneficiary’s health, education, support, and maintenance, or as any Corporate Trustee in its discretion determines to be in that beneficiary’s best interests. After being reasonably assured that the beneficiary has sufficient means for his or her continued support, the Trustee in its discretion also may pay any sums of income or principal that it deems necessary or advisable for the health, education, support, and maintenance of the beneficiary’s descendants, or as any Independent Trustee in its discretion determines to be in their best interests, either individually or collectively.

With respect to the second approach, the following is an example of language explicitly overriding the trustee’s duty of impartiality between current and remainder beneficiaries:

Duty of Impartiality. In exercising its discretion to make distributions to or for the beneficiary of this trust, the trustee shall consider the needs of the remainder beneficiaries to be subordinate to the interests of the current beneficiaries. No good faith decision to invade principal for the benefit of a current beneficiary shall be subject to challenge by any remainder beneficiary.

Photo of Juan C. Antúnez Juan C. Antúnez

Mr. Antúnez is a Florida native. Prior to law school Mr. Antúnez volunteered for service with the United States Marine Corps Reserve, 4th ANGLICO, West Palm Beach, Florida (1987-1993), including combat operations during the First Gulf War (1990-91). Mr. Antúnez has practiced law…

Mr. Antúnez is a Florida native. Prior to law school Mr. Antúnez volunteered for service with the United States Marine Corps Reserve, 4th ANGLICO, West Palm Beach, Florida (1987-1993), including combat operations during the First Gulf War (1990-91). Mr. Antúnez has practiced law in Florida since 1996. Trusts and estates litigation, probate administration and estate planning is all he does as a lawyer. Mr. Antúnez is the author and publisher of the Florida Probate & Trust Litigation Blog, co-author of the Florida probate chapter of International Succession, published by Oxford University Press, and sole author of the Florida chapter of ADR and Trusts: an international guide to arbitration and mediation of trust disputes, published by Spiramus Press. Mr. Antúnez has previously served as an adjunct law professor for the LL.M. in Estate Planning program at the University of Miami School of Law, and frequently lectures at continuing legal education seminars for professional groups on areas related to trusts and estates. Read More…


Education

LL.M. in Estate Planning, University of Miami School of Law, Miami, Florida, 2003

J.D., New York University School of Law, New York, New York, 1996

B.A., Finance, Florida International University, College of Business, Miami, Florida, 1992

Jurisdictions Admitted to Practice

Florida, 1996

Admissions

All Florida state courts

U.S. Court of Appeals for the Eleventh Circuit

U.S. District Court, Middle District of Florida

U.S. District Court, Northern District of Florida

U.S. District Court, Southern District of Florida

Professional & Bar Association Memberships

Florida Bar

Member: Real Property, Probate and Trust Law Section

Member: Elder Law Section

Member: International Law Section

Military Service

4th ANGLICO, United States Marine Corps Reserve, West Palm Beach, Florida, 1987-1993

Honors: Combat Action Ribbon, Kuwaiti Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal, Army Commendation Medal, Meritorious Unit Citation

Read more about Juan C. AntúnezEmailJuan C.'s Linkedin Profile
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  • Posted in:
    Trusts, Estates and Elder
  • Blog:
    Florida Probate & Trust Litigation Blog
  • Organization:
    Stokes McMillan Antúnez Martinez-Lejarza P.A.
  • Article: View Original Source

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