Florida Senate - 2021 COMMITTEE AMENDMENT Bill No. CS for SB 954 Ì387788qÎ387788 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/20/2021 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Rules (Bean) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Section 733.6171, Florida Statutes, is amended 6 to read: 7 733.6171 Compensation of attorney for the personal 8 representative.— 9 (1) Except as provided in paragraph (2)(d), attorneys for 10 personal representatives areshall beentitled to reasonable 11 compensation payable from the estate assets without court order. 12 (2)(a) The attorney, the personal representative, and 13 persons bearing the impact of the compensation may agree to 14 compensation determined in a different manner than provided in 15 this section. Compensation may also be determined in a different 16 manner than provided in this section if the manner is disclosed 17 to the parties bearing the impact of the compensation and if no 18 objection is made as provided for in the Florida Probate Rules. 19 (b) An attorney representing a personal representative in 20 an estate administration who intends to charge a fee based upon 21 the schedule set forth in subsection (3) shall make the 22 following disclosures in writing to the personal representative: 23 1. There is not a mandatory statutory attorney fee for 24 estate administration. 25 2. The attorney fee is not required to be based on the size 26 of the estate, and the presumed reasonable fee provided in 27 subsection (3) may not be appropriate in all estate 28 administrations. 29 3. The fee is subject to negotiation between the personal 30 representative and the attorney. 31 4. The selection of the attorney is made at the discretion 32 of the personal representative, who is not required to select 33 the attorney who prepared the will. 34 5. The personal representative shall be entitled to a 35 summary of ordinary and extraordinary services rendered for the 36 fees agreed upon at the conclusion of the representation. The 37 summary shall be provided by counsel and shall consist of the 38 total hours devoted to the representation or a detailed summary 39 of the services performed during the representation. 40 (c) The attorney shall obtain the personal representative’s 41 timely signature acknowledging the disclosures. 42 (d) If the attorney does not make the disclosures required 43 by this section, the attorney may not be paid for legal services 44 without prior court approval of the fees or the written consent 45 of all interested parties. 46 (3) Subject to subsection (2), compensation for ordinary 47 services of attorneys in a formal estate administration is 48 presumed to be reasonable if based on the compensable value of 49 the estate, which is the inventory value of the probate estate 50 assets and the income earned by the estate during the 51 administration as provided in the following schedule: 52 (a) One thousand five hundred dollars for estates having a 53 value of $40,000 or less. 54 (b) An additional $750 for estates having a value of more 55 than $40,000 and not exceeding $70,000. 56 (c) An additional $750 for estates having a value of more 57 than $70,000 and not exceeding $100,000. 58 (d) For estates having a value in excess of $100,000, at 59 the rate of 3 percent on the next $900,000. 60 (e) At the rate of 2.5 percent for all above $1 million and 61 not exceeding $3 million. 62 (f) At the rate of 2 percent for all above $3 million and 63 not exceeding $5 million. 64 (g) At the rate of 1.5 percent for all above $5 million and 65 not exceeding $10 million. 66 (h) At the rate of 1 percent for all above $10 million. 67 (4) Subject to subsection (2), in addition to fees for 68 ordinary services, the attorney for the personal representative 69 shall be allowed further reasonable compensation for any 70 extraordinary service. What is an extraordinary service may vary 71 depending on many factors, including the size and complexity of 72 the estate. Extraordinary services may include, but are not 73 limited to: 74 (a) Involvement in a will contest, will construction, a 75 proceeding for determination of beneficiaries, a contested 76 claim, elective share proceeding, apportionment of estate taxes, 77 or any adversarial proceeding or litigation by or against the 78 estate. 79 (b) Representation of the personal representative in audit 80 or any proceeding for adjustment, determination, or collection 81 of any taxes. 82 (c) Tax advice on postmortem tax planning, including, but 83 not limited to, disclaimer, renunciation of fiduciary 84 commission, alternate valuation date, allocation of 85 administrative expenses between tax returns, the QTIP or reverse 86 QTIP election, allocation of GST exemption, qualification for 87 Internal Revenue Code ss. 6166 and 303 privileges, deduction of 88 last illness expenses, fiscal year planning, distribution 89 planning, asset basis considerations, handling income or 90 deductions in respect of a decedent, valuation discounts, 91 special use and other valuation, handling employee benefit or 92 retirement proceeds, prompt assessment request, or request for 93 release of personal liability for payment of tax. 94 (d) Review of estate tax return and preparation or review 95 of other tax returns required to be filed by the personal 96 representative. 97 (e) Preparation of the estate’s federal estate tax return. 98 If this return is prepared by the attorney, a fee of one-half of 99 1 percent up to a value of $10 million and one-fourth of 1 100 percent on the value in excess of $10 million of the gross 101 estate as finally determined for federal estate tax purposes, is 102 presumed to be reasonable compensation for the attorney for this 103 service. These fees shall include services for routine audit of 104 the return, not beyond the examining agent level, if required. 105 (f) Purchase, sale, lease, or encumbrance of real property 106 by the personal representative or involvement in zoning, land 107 use, environmental, or other similar matters. 108 (g) Legal advice regarding carrying on of the decedent’s 109 business or conducting other commercial activity by the personal 110 representative. 111 (h) Legal advice regarding claims for damage to the 112 environment or related procedures. 113 (i) Legal advice regarding homestead status of real 114 property or proceedings involving that status and services 115 related to protected homestead. 116 (j) Involvement in fiduciary, employee, or attorney 117 compensation disputes. 118 (k) Proceedings involving ancillary administration of 119 assets not subject to administration in this state. 120 (5) Upon petition of any interested person, the court may 121 increase or decrease the compensation for ordinary services of 122 the attorney or award compensation for extraordinary services if 123 the facts and circumstances of the particular administration 124 warrant. In determining reasonable compensation, the court shall 125 consider all of the following factors, giving weight to each as 126 it determines to be appropriate: 127 (a) The promptness, efficiency, and skill with which the 128 administration was handled by the attorney. 129 (b) The responsibilities assumed by and the potential 130 liabilities of the attorney. 131 (c) The nature and value of the assets that are affected by 132 the decedent’s death. 133 (d) The benefits or detriments resulting to the estate or 134 interested persons from the attorney’s services. 135 (e) The complexity or simplicity of the administration and 136 the novelty of issues presented. 137 (f) The attorney’s participation in tax planning for the 138 estate and the estate’s beneficiaries and tax return 139 preparation, review, or approval. 140 (g) The nature of the probate, nonprobate, and exempt 141 assets, the expenses of administration, the liabilities of the 142 decedent, and the compensation paid to other professionals and 143 fiduciaries. 144 (h) Any delay in payment of the compensation after the 145 services were furnished. 146 (i) Any agreement relating to the attorney’s compensation 147 and whether written disclosures were made to the personal 148 representative in a timely manner under the circumstances 149 pursuant to subsection (2). 150 (j) Any other relevant factors. 151 (6) If a separate written agreement regarding compensation 152 exists between the attorney and the decedent, the attorney shall 153 furnish a copy to the personal representative prior to 154 commencement of employment, and, if employed, shall promptly 155 file and serve a copy on all interested persons.NeitherA 156 separate agreement ornora provision in the will suggesting or 157 directing that the personal representative retain a specific 158 attorney does notwillobligate the personal representative to 159 employ the attorney or obligate the attorney to accept the 160 representation, but if the attorney who is a party to the 161 agreement or who drafted the will is employed, the compensation 162 paid shall not exceed the compensation provided in the agreement 163 or in the will. 164 Section 2. Present paragraph (i) of subsection (6) of 165 section 736.1007, Florida Statutes, is redesignated as paragraph 166 (j), a new paragraph (i) is added to that subsection, and 167 subsections (1), (2), (3), and (5) of that section are amended, 168 to read: 169 736.1007 Trustee’s attorney fees.— 170 (1)(a) Except as provided in paragraph (d), if the trustee 171 of a revocable trust retains an attorney to render legal 172 services in connection with the initial administration of the 173 trust, the attorney is entitled to reasonable compensation for 174 those legal services, payable from the assets of the trust, 175 subject to s. 736.0802(10), without court order. The trustee and 176 the attorney may agree to compensation that is determined in a 177 manner or amount other than the manner or amount provided in 178 this section. The agreement is not binding on a person who bears 179 the impact of the compensation unless that person is a party to 180 or otherwise consents to be bound by the agreement. The 181 agreement may provide that the trustee is not individually 182 liable for the attorney fees and costs. 183 (b) An attorney representing a trustee in the initial 184 administration of the trust who intends to charge a fee based 185 upon the schedule set forth in subsection (2) shall make the 186 following disclosures in writing to the trustee: 187 1. There is not a mandatory statutory attorney fee for 188 trust administration. 189 2. The attorney fee is not required to be based on the size 190 of the trust, and the presumed reasonable fee provided in 191 subsection (2) may not be appropriate in all trust 192 administrations. 193 3. The fee is subject to negotiation between the trustee 194 and the attorney. 195 4. The selection of the attorney is made at the discretion 196 of the trustee, who is not required to select the attorney who 197 prepared the trust. 198 5. The trustee shall be entitled to a summary of ordinary 199 and extraordinary services rendered for the fees agreed upon at 200 the conclusion of the representation. The summary shall be 201 provided by counsel and shall consist of the total hours devoted 202 to the representation or a detailed summary of the services 203 performed during the representation. 204 (c) The attorney shall obtain the trustee’s timely 205 signature acknowledging the disclosures. 206 (d) If the attorney does not make the disclosures required 207 by this section, the attorney may not be paid for legal services 208 without prior court approval of the fees or the written consent 209 of the trustee and all qualified beneficiaries. 210 (2) Unless otherwise agreed and subject to subsection (1), 211 compensation based on the value of the trust assets immediately 212 following the settlor’s death and the income earned by the trust 213 during initial administration at the rate of 75 percent of the 214 schedule provided in s. 733.6171(3)(a)-(h) is presumed to be 215 reasonable total compensation for ordinary services of all 216 attorneys employed generally to advise a trustee concerning the 217 trustee’s duties in the initial trust administration. 218 (3) Subject to subsection (1), an attorney who is retained 219 to render only limited and specifically defined legal services 220 shall be compensated as provided in the retaining agreement. If 221 the amount or method of determining compensation is not provided 222 in the agreement, the attorney is entitled to a reasonable fee, 223 taking into account the factors set forth in subsection (6). 224 (5) Subject to subsection (1), in addition to the 225 attorney’s fees for ordinary services, the attorney for the 226 trustee shall be allowed further reasonable compensation for any 227 extraordinary service. What constitutes an extraordinary service 228 may vary depending on many factors, including the size and 229 complexity of the trust. Extraordinary services may include, but 230 are not limited to: 231 (a) Involvement in a trust contest, trust construction, a 232 proceeding for determination of beneficiaries, a contested 233 claim, elective share proceedings, apportionment of estate 234 taxes, or other adversary proceedings or litigation by or 235 against the trust. 236 (b) Representation of the trustee in an audit or any 237 proceeding for adjustment, determination, or collection of any 238 taxes. 239 (c) Tax advice on postmortem tax planning, including, but 240 not limited to, disclaimer, renunciation of fiduciary 241 commission, alternate valuation date, allocation of 242 administrative expenses between tax returns, the QTIP or reverse 243 QTIP election, allocation of GST exemption, qualification for 244 Internal Revenue Code ss. 303 and 6166 privileges, deduction of 245 last illness expenses, distribution planning, asset basis 246 considerations, throwback rules, handling income or deductions 247 in respect of a decedent, valuation discounts, special use and 248 other valuation, handling employee benefit or retirement 249 proceeds, prompt assessment request, or request for release from 250 personal liability for payment of tax. 251 (d) Review of an estate tax return and preparation or 252 review of other tax returns required to be filed by the trustee. 253 (e) Preparation of decedent’s federal estate tax return. If 254 this return is prepared by the attorney, a fee of one-half of 1 255 percent up to a value of $10 million and one-fourth of 1 percent 256 on the value in excess of $10 million, of the gross estate as 257 finally determined for federal estate tax purposes, is presumed 258 to be reasonable compensation for the attorney for this service. 259 These fees shall include services for routine audit of the 260 return, not beyond the examining agent level, if required. 261 (f) Purchase, sale, lease, or encumbrance of real property 262 by the trustee or involvement in zoning, land use, 263 environmental, or other similar matters. 264 (g) Legal advice regarding carrying on of decedent’s 265 business or conducting other commercial activity by the trustee. 266 (h) Legal advice regarding claims for damage to the 267 environment or related procedures. 268 (i) Legal advice regarding homestead status of trust real 269 property or proceedings involving the status. 270 (j) Involvement in fiduciary, employee, or attorney 271 compensation disputes. 272 (k) Considerations of special valuation of trust assets, 273 including discounts for blockage, minority interests, lack of 274 marketability, and environmental liability. 275 (6) Upon petition of any interested person in a proceeding 276 to review the compensation paid or to be paid to the attorney 277 for the trustee, the court may increase or decrease the 278 compensation for ordinary services of the attorney for the 279 trustee or award compensation for extraordinary services if the 280 facts and circumstances of the particular administration 281 warrant. In determining reasonable compensation, the court shall 282 consider all of the following factors giving such weight to each 283 as the court may determine to be appropriate: 284 (i) Any agreement relating to the attorney’s compensation 285 and whether written disclosures were made to the trustee in a 286 timely manner under the circumstances pursuant to paragraph 287 (1)(b). 288 Section 3. This act applies to initial estate and initial 289 trust administrations commenced on or after October 1, 2021. 290 Section 4. This act shall take effect October 1, 2021. 291 292 ================= T I T L E A M E N D M E N T ================ 293 And the title is amended as follows: 294 Delete everything before the enacting clause 295 and insert: 296 A bill to be entitled 297 An act relating to attorney compensation; amending s. 298 733.6171, F.S.; requiring an attorney representing a 299 personal representative in an estate administration 300 who intends to charge a certain fee to make specified 301 written disclosures; requiring the attorney to obtain 302 a certain signature; prohibiting an attorney who does 303 not make such disclosures from being paid for legal 304 services except in certain circumstances; providing 305 that the complexity of an estate may be considered 306 when determining what is an extraordinary service; 307 requiring a court to consider certain agreements and 308 written disclosures when determining reasonable 309 compensation of an attorney upon petition of an 310 interested person; amending s. 736.1007, F.S.; 311 requiring an attorney representing a trustee in the 312 initial administration of a trust who intends to 313 charge a certain fee to make specified written 314 disclosures; requiring the attorney to obtain a 315 certain signature; prohibiting an attorney who does 316 not make such disclosures from being paid for legal 317 services except in certain circumstances; providing 318 that the complexity of a trust may be considered when 319 determining what is an extraordinary service; 320 requiring a court to consider certain agreements and 321 written disclosures when determining reasonable 322 compensation of an attorney upon petition of an 323 interested person; providing applicability; providing 324 an effective date.