Written Disclosure Requirements for Attorney Fees in Trust and Estate Administrations

Shutts & Bowen LLP

House Bill 625 (2021), sponsored by Representative Clay Yarborough, R–Jacksonville, amends Sections 733.6167 and 736.1007 of the Florida Statutes to provide that if an attorney intends to charge a fee for an estate or initial trust administration based on the Florida statutory fee schedules, then the attorney must make the following written disclosures to the personal representative or trustee:

  • There is no mandatory statutory attorney fee for an estate or trust administration;
  • The attorney fee is not required to be based on the size of the estate or trust, and the presumed reasonable fee schedule may not be appropriate in all estate or trust administrations;
  • The fee is subject to negotiation between the personal representative or trustee and the attorney;
  • The selection of the attorney is made at the discretion of the personal representative or trustee, who is not required to select the attorney who prepared the will or trust; and
  • The fiduciary shall be entitled to a summary of ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation, which shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the same.

The Bill requires the attorney to obtain the fiduciary’s signature acknowledging receipt of the disclosures above. Importantly, if an attorney fails to make the required disclosures, then the attorney cannot be paid for legal services without prior court approval of the fees or the written consent of all interested parties in an estate administration or the trustee and qualified beneficiaries in an initial trust administration.

The Bill adds, among other things, that when a court is determining reasonable compensation of an attorney, the court is required to consider any fee agreements and if the attorney made the required written disclosures. Further, the Bill adds that the complexity of the estate and trust should be considered, rather than just its size, when determining additional reasonable compensation for an attorney’s extraordinary services.

The Bill was passed by the Senate (39-0) on April 22, 2021. The same was passed by the House of Representatives (113-1) on April 29, 2021. As it stands, the Bill is pending action by Governor Ron DeSantis. If signed by Governor DeSantis, the Bill provides for an effective date of October 1, 2021. If vetoed, legislators can override the veto with a two-thirds vote of both the House and Senate.

The Bill is likely to have a positive impact on both attorneys and clients. The required disclosures, set forth above, ensure that attorneys communicate effectively and transparently with clients and promote a mutually acceptable and appropriate fee under the circumstances.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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