Written by Brian Spiro • May 19th, 2015
The Florida Probate Code and the Florida Trust Code govern the administration of estates and trusts under Florida law. These codes establish the mechanisms and procedures for the collection and subsequent distribution of assets to the beneficiaries of wills and trusts. The legislature recently amended the Probate Code and the Trust Code concerning the following areas: attorney fees and costs; personal representatives; and the notice of administration.
Attorney Fees and Costs for Estates and Trusts
Both the probate and trust codes provide that an attorney who rendered services to an estate or trust may be awarded reasonable compensation from the estate or trust for those services. In its current version, the Court may, in its discretion, direct from which part of the estate or trust those fees and costs may be paid.
In response to inconsistent application of the law in this regard, the legislature has enumerated considerations for a Court in its exercise of whether to assess attorney fees and costs. These considerations, pursuant to Section 733.106(4)(c), Florida Statutes, now include:
- The relative impact an assessment will have on the estimated value of each person’s part of the estate;
- The amount of costs and attorney fees to be assessed against someone’s part of the estate;
- The extent to which a person whose part of the estate is to be assessed actively participated in the proceeding;
- The potential benefit or harm to a person’s part of the estate;
- The relative strength or weakness of the merits of the claims, defenses, or objections, if any, that were asserted by someone whose part of the estate is to be assessed;
- Whether the person to be assessed was a prevailing party with regard to any claims, defenses, or objections;
- Whether the person whose part is to be assessed unjustly caused an increase in the costs and attorney fees that were incurred by the personal representative or another interested person in the proceeding; and,
- Any other relevant fact, circumstance, or equity.
By enumerating the aforementioned considerations, conflict of this State’s District Courts is resolved in that a finding of “bad faith, wrongdoing, or frivolousness” is no longer necessary in order for a court to award fees and costs. Further, if costs are to be paid in certain trusts, all or part of the costs may be assessed against one or more parts of the trust in proportions that the court finds to be just and proper. See § 736.1006, Florida Statutes.
Personal Representatives and Notice of Administration
A personal representative is either an individual or corporate entity who is assigned by the Court to administer an estate. If the personal representative is an individual, he or she must be at least 18 years of age, a resident of Florida, and have full capacity on the date of the person’s death whose estate he or she is administering.
This amendment to Section 733.3101, Florida Statutes, will require that personal representatives who are not qualified at the time of appointment resign or be removed by the Court and have their letters of administration revoked. See § 733.504, Florida Statutes. Presently, a personal representative who fails to comply with this law is personally liable for attorney fees and costs incurred in the proceedings associated with his or her removal. This amendment extends the liability to a personal representative who does not know, but should have known of facts that would have required him or her to resign and file and serve notice of the disqualification. See § 733.3101(3), Florida Statutes.
It appears that this law may be viewed as a legislative approval of Hill v. Davis, which relaxes the three month time-period for filing of certain probate-related objections. At the outset, the amendments remove objections to the qualifications of personal representatives from the provisions of the Notice of Administration. This legislative amendment will also now permit an extension of time for filing an objection to the validity of a will, the venue, or the Court’s jurisdiction to entertain an estoppel challenge based solely on a misstatement by the personal representative regarding the time period within which an objection must be filed. See § 733.212(3), Florida Statutes.
These provisions and amendments are effective July 1, 2015.
be reached at (561) 842-4868.