In Florida, the Florida Probate Code and the Florida Trust code govern the administration of estates and trusts. These codes establish the rules and procedures for all probate matters such as the administration of a will. The Florida Legislature has recently amended the Florida Probate Codes.
Attorneys Fees and Costs
Both the probate and trust codes provide that an attorney who has provided services to an estate or trust may be awarded reasonable compensation. The latest update to the codes has been in response to inconsistent application of these laws which used to require there be a finding of “bad faith, wrongdoing, or frivolousness” in order to award a party attorney’s fees and costs. The codes have now eliminated this vague language and have enumerated a list of factors that a court should use when deciding to award attorneys’ fees in a case. These considerations allow a court to even direct, in its discretion, from which part of the estate or trust attorney’s fees and costs may be paid.
Courts will now award attorney’s fees and costs whenever the court finds it just and proper, and will consider:
- What impact an assessment will have on the value of each beneficiary’s portion of the estate.
- The total amount of costs and fees taken from someone’s part of the estate.
- The extent to which a beneficiary whose part of the estate is to be assessed actively participated in the proceeding.
- The potential harm to a person’s estate
- The merits of the claims, defenses, or objections that were asserted by someone who’s part of the estate is to be assessed
- Whether the person assessed was the prevailing party
- Whether the person to be assessed unjustly caused an increase in the costs and attorney fees that were incurred by the attorney.
- Any other relevant facts or circumstances.
New laws for Attorneys acting as Fiduciaries
An attorney serving as a personal representative who provides legal services, administering an estate is permitted to receive compensation for both the personal representative services and for his or her legal services. An attorney can only receive compensation for serving as a fiduciary if the attorney discloses the fee in writing before the will or trust is signed. Failure to obtain written consent will not affect the validity of the will, but it will prohibit the fiduciary from obtaining compensation.
Personal Representatives liable for attorney’s fees if not qualified
A personal representative is a person or entity assigned by a court to administer an estate. In Florida, a personal representative is required to be 18 years old, a resident of Florida, and has full mental capacity. The latest amendment will require personal representatives who are not qualified at the time of appointment to resign. Further, the personal representative may be personally liable for attorney’s fees and costs incurred in the removal proceedings. This will depend on if the representative should have known of facts that would have required him or her to file and serve notice of disqualification.
For more information on the latest changes to Florida’s Probate and Trust codes, see the latest Senate analysis from 2015