Taxation & Estate Planning

Everything you ever wanted to know about drafting opinion letters involving Florida trusts (+ great forms!). What else could you ask for?

By Juan Antunez

If you're like most trusts-and-estates lawyers, you don't work at a big firm. Which means you can't walk down the hallway and ask one of your partners for a good set of forms when someone wants to hire you to provide a legal opinion on some trust-related issue (as opposed to a tax opinion). Don't underestimate the value of a good set of forms. Good forms don't take the place of your experience and expertise, but they do provide an invaluable "checklist" of issues to think about and a road map for getting the job done "on time and under budget."

The Legal Opinion Standards Committee of the Florida Bar Business Law Section and the Legal Opinions Committee of the Real Property, Probate and Trust Law Section of The Florida Bar just published their Report on Standards for Third-party Legal Opinions of Florida Counsel [click here].  This report is the "gold standard" for Florida legal-opinions. Not only does it explain each and every element of a well-done opinion letter (highlighting pitfalls most of us would never imagine), it provides five sample opinion letters plus a sample "certificate to counsel."

Below is the report's due diligence checklist for trust-related legal opinions. In terms of making sure you don't get sued for malpractice, this is probably the single most important section of the report. You'll want to hold onto this for future reference.

Diligence Checklist - Trusts, including Florida Land Trusts

[1]  If the trustee is a corporation, partnership, or limited liability company, confirm that the trustee that is an entity is properly organized and has active status (or in good standing in the state of its incorporation) and, if it is a foreign entity required to obtain a certificate of authority to transact business in Florida, it has obtained such a certificate of authority from the Department.

[2]  If the deed or other instrument of conveyance is dated prior to July 3, 1992, and the trustee is a corporation, confirm that the corporation has trust powers. As of July 2, 1992, those portions of Section 660.41, Florida Statutes, which mandated that corporate trustees have trust powers were repealed. Thus, if the deed or other instrument of conveyance is dated after July 2, 1992, and the trustee is a corporation, it is unnecessary to confirm the existence of trust powers. See Fund Title Note 31.02.06 (2001). The existence of trust powers for state chartered institutions may be confirmed by obtaining a Certificate from the Department of Banking and Finance, and the existence of such powers for federally chartered institutions may be obtained from the Comptroller of the Currency, at the following respective addresses:

Director, Division of Banking
Department of Banking and Finance
The Capitol Building
Tallahassee, Florida 32399-0350

Comptroller of the Currency
Southeastern District
Peachtree-Cain Tower, Suite 2700
229 Peachtree Street, N.E.
Atlanta, Georgia 30303

[3]  In order to opine that the Client is the trustee of a Florida land trust that is in compliance with the provisions of Section 689.071, Florida Statutes, Opining Counsel should examine the deed or other instrument of conveyance naming the trustee as grantee or transferee for compliance with the requirements set forth in Section 689.071, Florida Statutes.

[4]  If the trust satisfies the requirements set forth in Section 689.071, Florida Statutes, secure a written certificate or affidavit signed by at least the trustee, and preferably also by all of the beneficiaries of the trust, confirming that no separate trust agreement or other agreement governing the trust relationship exists. If the trust satisfies the requirements set forth in Section 689.071, Florida Statutes, but Opining Counsel has knowledge that a trust agreement governing the trust relationship exists, Opining Counsel should secure a copy of the written trust agreement governing the trust and such trust agreement needs to be reviewed by Opining Counsel in order for Opining Counsel to render opinions with respect to the trust and, in particular, in order to determine who is designated as the trustee(s) of the trust.

[5]  If the trust does not satisfy the requirements set forth in Section 689.071, Florida Statutes, Opining Counsel should secure a copy of the written trust agreement governing the trust and such trust agreement needs to be reviewed by Opining Counsel in order for Opining Counsel to render opinions with respect to the trust and, in particular, in order to determine who is designated as the trustee(s) of the trust.

Full post as published by Florida Probate Litigation Blog on February 12, 2010 (boomark / email).