## Facts

- Bernard J. Herskowitz died in 1974, leaving an estate exceeding $500,000.
- Bernard’s will directed that the estate be placed in a testamentary trust for the benefit of his two minor sons, Robert and Mark.
- Bernard named his brother, Marvin J. Herskowitz, to serve as both executor of the estate and trustee under the will, and the will waived any requirement that Marvin qualify as trustee under Florida Statutes chapter 737.
- After Bernard’s death, the will was admitted to probate. The boys’ mother, Judy Herskowitz, was appointed guardian of the boys’ persons, and Samuel S. Smith was appointed guardian ad litem for the minor beneficiaries.
- A statutory family allowance totaling $4,200 was paid from the probate estate and later exhausted.
- After the family allowance ended, Smith petitioned the probate court to require Marvin (as executor) to make a distribution from the estate to fund the testamentary trust and to require Marvin (as trustee) to make regular payments for the boys’ support, arguing the will created a support trust.
- Marvin objected, arguing that the will gave him “sole and absolute” discretion over trust distributions and that the court lacked authority to compel funding or payments because the trust had not been funded or registered under Florida law.
- Following a hearing, the probate court found that:
  - the will showed an intent to create a support trust for Robert and Mark;
  - the estate was liquid and sufficient to pay administration expenses and creditors; and
  - Marvin’s refusal to fund the trust and make support payments was arbitrary and capricious.
- The probate court ordered Marvin, as executor, to make a sufficient partial distribution to himself as trustee to fund the trust and ordered Marvin, as trustee, to begin interim support arrangements, including $323 monthly payments for the boys, payment of the mortgage on the residence, and a $500 deposit for possible medical needs. The order stated the payments were temporary and subject to review.
- Marvin appealed the probate court’s order to the District Court of Appeal of Florida, Third District.

## Issues

1. Whether the probate court had authority to order the executor to make a partial distribution to fund a testamentary trust and to require interim support payments for minor beneficiaries.
2. Whether a testamentary trust created by will could be treated as existing and enforceable even though it had not yet been funded or registered under Florida Statutes chapter 737.
3. Whether a trustee’s “sole and absolute” discretionary power over distributions prevents judicial action when the trustee refuses to make support payments under a trust intended for the beneficiaries’ support.

## Decision

- The District Court of Appeal of Florida, Third District, affirmed the probate court’s order.
- The court held the probate court could require the executor to make a partial distribution to fund the testamentary trust and could direct interim support payments for the minor beneficiaries.
- The court rejected the argument that trust registration under Florida Statutes § 737.101 was required before the court could act, treating registration as not mandatory and not a bar to the probate court’s authority.
- The court agreed that the will created a valid testamentary trust for identifiable beneficiaries with an identifiable trust property source, and the estate’s liquidity supported immediate funding for support purposes.
- The court upheld judicial action when the trustee’s refusal to provide support was found arbitrary and capricious, even where the will used broad discretionary language.
- The temporary, reviewable nature of the ordered payments supported affirmance.

## Legal Principles

- A Florida probate court may supervise administration of a testamentary trust and may order a partial distribution from an estate to fund the trust when doing so carries out the will’s support purpose and the estate can satisfy creditors and expenses.
- Registration of a trust under Florida Statutes § 737.101 is not required for a testamentary trust to be recognized or for the court to exercise authority over trust administration.
- A testamentary trust may be treated as valid and enforceable when the will shows intent to create a trust, identifies the beneficiaries, and identifies property to serve as the trust corpus, even if funding steps remain.
- Even broad discretionary distribution language does not bar court action when a trustee’s refusal to make support distributions amounts to arbitrary and capricious conduct or an abuse of discretion, especially in a support trust for minor children.
- Courts may order interim support measures from a testamentary support trust to protect minor beneficiaries, with amounts subject to later review.

## Conclusion

The Third District affirmed an order requiring the executor-trustee to fund a testamentary support trust and begin temporary support-related payments for the decedent’s minor children, holding that lack of trust registration did not prevent court action and that a trustee’s broad discretion does not protect an arbitrary refusal to provide support the will intended.


Herskowitz v. Smith (In re Estate of Herskowitz), 338 So. 2d 210 (1976)