Three Critical Steps to Avoid the McGee Trap: Florida Trust Amendment and Funding Mistakes That Cost Families Everything

By the Estate Planning Attorneys at Aspire Legal Solutions PLLC

When Good Intentions Meet Poor Execution: The $1 Million Estate Planning Mistake

Robert McGee thought he had done everything right. He worked with an attorney. He created a trust. He named his beneficiaries. He even updated his estate plan when his wishes changed. But when Robert passed away, his family discovered a catastrophic error that turned his final wishes upside down and sent his estate into expensive litigation.

This cautionary tale, decided by Florida's Second District Court of Appeal in August 2025, reveals how a simple estate planning mistake can derail even the most carefully considered intentions. More importantly, it offers three essential lessons that every Florida resident with a trust needs to understand about funding trusts, Florida trust amendments, and avoiding devastating estate planning mistakes.

The Story of Two Trusts and One Fatal Oversight

Robert McGee's estate planning journey began in 2014 when he created his first revocable trust (the "2014 Trust"). This trust named multiple beneficiaries, including his wife Jacqueline and his daughter Karey. Robert properly funded this trust by transferring his real estate and bank accounts into it. Everything was in order.

Seven years later, in 2021, Robert's wishes changed. He decided he wanted Jacqueline, his wife, to be the sole beneficiary of his estate. So he returned to an attorney and created an entirely new trust (the "2021 Trust"). This new trust clearly stated that all of Robert's property should go to Jacqueline upon his death. The trust even included a schedule listing his real estate and bank accounts as "trust property."

There was just one problem: Robert never actually transferred the property from the 2014 Trust into the 2021 Trust. His attorney gave him instructions on how to retitle his assets. The attorney even provided a document warning that if Robert didn't transfer his property into the trust, "the trust document will have no effect on what happens to your property."

But for reasons we'll never know, Robert didn't complete the transfers. When he passed away, every single asset remained titled in the name of the 2014 Trust. The 2021 Trust, which named Jacqueline as sole beneficiary, owned nothing. Meanwhile, the 2014 Trust, which still legally owned all the property, named multiple beneficiaries including Karey.

The Legal Battle: Can a Court Fix an Unfunded Trust?

After Robert's death, Jacqueline found herself in an impossible position. She was named as the sole beneficiary in the trust that reflected Robert's most recent wishes, but that trust owned no property. All the property was still in the older trust that named other beneficiaries.

Jacqueline, acting as trustee of both trusts, filed a petition asking the court to "reform" the 2021 Trust under Florida Statute 736.0415. This statute allows courts to reform a trust when there has been a "mistake of fact or law" that affects both the settlor's intent and the terms of the trust. Jacqueline argued that Robert intended the 2021 Trust to be a restatement of the 2014 Trust, and that his failure to properly transfer the assets was a mistake that needed correction.

The trial court agreed with Jacqueline. The court found that Robert's "clear intent was that all his properties owned by the 2014 Trust be transferred to Jacqueline McGee upon his death." The court ordered the 2021 Trust to be reformed as a restatement of the 2014 Trust, which would have given all the property to Jacqueline.

But Karey appealed, and the appellate court reversed the decision in a ruling that every estate planning attorney and trust creator needs to understand.

Why the Appellate Court Said "No": Understanding Trust Reformation

The Second District Court of Appeal carefully analyzed Florida's trust reformation statute and concluded that the trial court had made a critical legal error. The appellate court explained that Section 736.0415 only allows reformation when there is a mistake that affects both the terms of the trust AND the settlor's intent.

Here's the key insight: the 2021 Trust clearly stated that all of Robert's property should go to Jacqueline. The parties even stipulated that "the terms of the 2021 Trust reflected Robert's intent at the time he signed it." The problem wasn't that the trust document said the wrong thing. The trust document said exactly what Robert wanted it to say. The problem was that Robert never funded the trust with the assets needed to carry out those instructions.

As the court explained, this was not a mistake in the terms of the trust itself. It was a mistake in execution—specifically, Robert's failure to transfer his assets from the old trust to the new one. The reformation statute allows courts to fix mistakes in what the trust document says, not mistakes in implementing what the trust document requires.

The court drew an important distinction: Robert may have intended for the assets in the 2014 Trust to ultimately go to Jacqueline, and he may have intended the 2021 Trust to be the mechanism for accomplishing that goal. But nothing in the 2021 Trust document indicated that he intended it to be a restatement of the 2014 Trust. The 2021 Trust said nothing about the 2014 Trust. It was clearly written as a new, separate trust that Robert would need to fund by transferring his assets into it.

The appellate court concluded: "The trial court erred by applying section 736.0415 to reform the 2021 Trust, the terms of which conformed to the settlor's intent." Because Robert never funded the 2021 Trust, it had no assets to distribute to Jacqueline. The property remained in the 2014 Trust, subject to its original beneficiary designations.

Three Critical Lessons for Estate Planning Attorneys

The McGee case offers important guidance for attorneys who draft trusts and advise clients on Florida trust amendments and estate planning:

1. Document Detailed Funding Instructions and Follow-Up Systems

The attorney who drafted Robert's 2021 Trust provided written instructions on how to fund the trust and warned about the consequences of failing to do so. Yet Robert never completed the funding. This case highlights that providing instructions isn't enough. Attorneys should consider implementing systematic follow-up procedures to verify that clients have actually retitled assets. This might include:

• Follow-up appointments specifically dedicated to reviewing funding
• Checklists that clients must complete and return
• Offering asset transfer services as part of the engagement
• Creating calendar reminders to check in with clients 30, 60, and 90 days after trust creation

While attorneys cannot force clients to follow instructions, building redundancy into the process can catch unfunded trusts before it's too late.

2. Always Inquire About Existing Trusts and Consider Restatements

The drafting attorney in McGee testified that he would have prepared a restatement of the 2014 Trust if he had known about it. This suggests that Robert never informed his attorney about the existing trust. Attorneys should always ask prospective clients detailed questions about existing estate planning documents, including:

• Whether they have any current trusts, wills, or powers of attorney
• Where those documents are located
• Whether assets have been titled to any existing trusts
• Who prepared the existing documents

When a client wants to change beneficiaries or terms, attorneys should carefully analyze whether an amendment or restatement is more appropriate than creating an entirely new trust. Restatements avoid the funding trap that caught Robert because the trust name and tax identification number remain the same—no retitling is required.

3. Understand the Limits of Trust Reformation Under Section 736.0415

McGee clarifies that Florida's trust reformation statute cannot be used as a catch-all remedy for execution failures. The statute requires clear and convincing evidence that a mistake of fact or law affected both the settlor's intent AND the terms of the trust document. Courts cannot reform a trust merely because:

• The settlor failed to fund the trust
• A simpler alternative existed that would have achieved the same result
• The outcome seems unfair given the settlor's obvious intentions

Reformation is available only when the trust document itself doesn't say what the settlor intended it to say. Attorneys should not rely on the possibility of post-death reformation to fix funding failures. The case reinforces that proper trust administration during the settlor's lifetime is essential and cannot be corrected later through judicial intervention.

Three Essential Lessons for Estate Planning Clients

If you have created a trust or are considering creating one as part of your Florida estate plan, the McGee case offers these critical warnings about estate planning mistakes and funding trusts:

1. Creating a Trust Is Only Half the Battle—Funding Is Everything

The most important lesson from McGee is this: a trust is just a set of instructions. Those instructions only control property that has actually been transferred into the trust. Robert created a perfectly valid trust that clearly expressed his wishes. But because he never funded it, those wishes had no legal effect.

Think of a trust like a container. You can have the most beautifully crafted container in the world, with detailed labels about where everything inside should go. But if you never put anything inside the container, the labels are meaningless.

To properly fund a trust, you must:

• Retitle real estate by recording new deeds that transfer the property to the trust
• Change bank and investment account titles to the trust's name
• Update beneficiary designations on life insurance and retirement accounts to coordinate with your trust plan
• Transfer business interests, vehicles, and personal property through appropriate assignments

This isn't automatic. It requires paperwork, trips to the bank, meetings with financial advisors, and sometimes additional legal work. Many people create a trust and then procrastinate on the funding steps. Don't make Robert's mistake.

2. When You Want to Change Your Estate Plan, Tell Your Attorney Everything

Robert never told his attorney about the 2014 Trust. Had the attorney known about it, he would have prepared a restatement rather than a new trust. A restatement would have avoided the entire funding problem because the trust name would have remained the same—no retitling would have been necessary.

When you meet with an estate planning attorney, bring:

• Copies of all existing estate planning documents
• A list of all your assets and how they are currently titled
• Information about any previous trusts, wills, or powers of attorney
• Details about previous attorneys you worked with

Your attorney can only give you proper advice if they know the complete picture. Incomplete information leads to solutions that don't actually work.

3. Courts Cannot Always Fix Your Mistakes After You Die

Many people assume that if there's a mistake in their estate plan, a judge will simply "do the right thing" and fix it after they die. McGee demonstrates that this assumption is dangerously wrong.

Florida law does allow courts to reform trusts under certain circumstances, but only when there is a mistake in what the trust document says—not a mistake in implementing what it requires. The court in McGee found that Robert's intent was clear from the trust document. The problem was that he didn't follow through with the steps necessary to make that intent legally effective.

Your family cannot count on a judge to correct your failure to complete the estate planning process. And even if there were grounds for reformation, the litigation would be expensive, time-consuming, and emotionally draining for your loved ones. The McGee case likely cost both sides tens of thousands of dollars in legal fees—money that could have gone to the beneficiaries if Robert had simply followed his attorney's instructions.

The only way to ensure your estate plan works is to complete it properly while you are alive and capable of taking action.

The Real Cost of the McGee Trap

What happened to Robert McGee's estate? Because the appellate court reversed the reformation order, the property remained in the 2014 Trust. That means Jacqueline, whom Robert clearly intended to be his sole beneficiary in 2021, had to share the estate with other beneficiaries named in the 2014 Trust, including Karey.

This wasn't just a legal technicality. It fundamentally altered the distribution of Robert's estate in a way that contradicted his final wishes. It likely strained family relationships. And it cost significant money in litigation that could have gone to the beneficiaries.

All of this could have been avoided with proper funding of the trust and attention to detail in executing the Florida trust amendment process.

How to Protect Your Family: A Three-Step Action Plan

Based on the lessons from McGee, here's what you should do to protect your estate plan:

Step 1: Review Your Current Trust Funding If you have an existing trust, verify that your assets are actually titled in the trust's name. Check your real estate deeds, bank account statements, and investment account titles. If anything is titled in your personal name rather than your trust, contact your attorney immediately.

Step 2: Follow Through Completely When Updating Your Estate Plan If you create a new trust or amend an existing one, commit to completing every step of the implementation process. Set aside time on your calendar to visit banks, meet with financial advisors, and sign all necessary documents. Don't stop until your attorney confirms that everything has been properly retitled.

Step 3: Schedule Regular Estate Plan Reviews Estate planning isn't a one-time event. Review your plan every three to five years, or whenever you experience a major life change (marriage, divorce, birth of a child, significant change in assets, move to a new state). During these reviews, verify both that your documents still reflect your wishes AND that your assets are properly funded.

Don't Let Your Family End Up in Court

The McGee case is a sobering reminder that even well-intentioned estate planning can fail if not properly executed. Creating a trust is an important first step, but it's only the beginning of the process. Proper funding of trusts and careful attention to Florida trust amendment requirements are essential to ensuring your wishes are carried out.

At Aspire Legal Solutions PLLC, we guide our clients through the entire estate planning process, from initial document drafting through complete asset funding and regular reviews. We don't just hand you documents and wish you luck—we ensure that every aspect of your plan is properly implemented and legally effective.

Don't gamble with your family's future. If you have questions about your trust, concerns about how your assets are titled, or want to update your estate plan, we're here to help.

Schedule a discovery call with Aspire Legal Solutions PLLC today to review your estate plan and ensure you're not falling into the McGee trap. Visit our website to book your consultation and protect what matters most.

This article is for informational purposes only and does not constitute legal advice. Estate planning laws vary by state and individual circumstances. Please consult with a qualified Florida estate planning attorney for advice specific to your situation.

Keywords: Florida trust amendment, funding trust, estate planning mistakes, Florida revocable trust, trust reformation, estate planning attorney Florida, trust funding errors, Florida trust law, estate planning review

About Aspire Legal Solutions PLLC: We are a Florida-based asset protection and estate planning law firm dedicated to helping families protect their legacies through comprehensive, properly executed estate plans. Our attorneys have extensive experience with trust creation, trust amendments, and trust administration throughout Florida.