Florida Senate - 2021 CS for CS for SB 954 By the Committees on Rules; and Judiciary; and Senator Bean 595-04558-21 2021954c2 1 A bill to be entitled 2 An act relating to attorney compensation; amending s. 3 733.6171, F.S.; requiring an attorney representing a 4 personal representative in an estate administration 5 who intends to charge a certain fee to make specified 6 written disclosures; requiring the attorney to obtain 7 a certain signature; prohibiting an attorney who does 8 not make such disclosures from being paid for legal 9 services except in certain circumstances; providing 10 that the complexity of an estate may be considered 11 when determining what is an extraordinary service; 12 requiring a court to consider certain agreements and 13 written disclosures when determining reasonable 14 compensation of an attorney upon petition of an 15 interested person; amending s. 736.1007, F.S.; 16 requiring an attorney representing a trustee in the 17 initial administration of a trust who intends to 18 charge a certain fee to make specified written 19 disclosures; requiring the attorney to obtain a 20 certain signature; prohibiting an attorney who does 21 not make such disclosures from being paid for legal 22 services except in certain circumstances; providing 23 that the complexity of a trust may be considered when 24 determining what is an extraordinary service; 25 requiring a court to consider certain agreements and 26 written disclosures when determining reasonable 27 compensation of an attorney upon petition of an 28 interested person; providing applicability; providing 29 an effective date. 30 31 Be It Enacted by the Legislature of the State of Florida: 32 33 Section 1. Section 733.6171, Florida Statutes, is amended 34 to read: 35 733.6171 Compensation of attorney for the personal 36 representative.— 37 (1) Except as provided in paragraph (2)(d), attorneys for 38 personal representatives areshall beentitled to reasonable 39 compensation payable from the estate assets without court order. 40 (2)(a) The attorney, the personal representative, and 41 persons bearing the impact of the compensation may agree to 42 compensation determined in a different manner than provided in 43 this section. Compensation may also be determined in a different 44 manner than provided in this section if the manner is disclosed 45 to the parties bearing the impact of the compensation and if no 46 objection is made as provided for in the Florida Probate Rules. 47 (b) An attorney representing a personal representative in 48 an estate administration who intends to charge a fee based upon 49 the schedule set forth in subsection (3) shall make the 50 following disclosures in writing to the personal representative: 51 1. There is not a mandatory statutory attorney fee for 52 estate administration. 53 2. The attorney fee is not required to be based on the size 54 of the estate, and the presumed reasonable fee provided in 55 subsection (3) may not be appropriate in all estate 56 administrations. 57 3. The fee is subject to negotiation between the personal 58 representative and the attorney. 59 4. The selection of the attorney is made at the discretion 60 of the personal representative, who is not required to select 61 the attorney who prepared the will. 62 5. The personal representative shall be entitled to a 63 summary of ordinary and extraordinary services rendered for the 64 fees agreed upon at the conclusion of the representation. The 65 summary shall be provided by counsel and shall consist of the 66 total hours devoted to the representation or a detailed summary 67 of the services performed during the representation. 68 (c) The attorney shall obtain the personal representative’s 69 timely signature acknowledging the disclosures. 70 (d) If the attorney does not make the disclosures required 71 by this section, the attorney may not be paid for legal services 72 without prior court approval of the fees or the written consent 73 of all interested parties. 74 (3) Subject to subsection (2), compensation for ordinary 75 services of attorneys in a formal estate administration is 76 presumed to be reasonable if based on the compensable value of 77 the estate, which is the inventory value of the probate estate 78 assets and the income earned by the estate during the 79 administration as provided in the following schedule: 80 (a) One thousand five hundred dollars for estates having a 81 value of $40,000 or less. 82 (b) An additional $750 for estates having a value of more 83 than $40,000 and not exceeding $70,000. 84 (c) An additional $750 for estates having a value of more 85 than $70,000 and not exceeding $100,000. 86 (d) For estates having a value in excess of $100,000, at 87 the rate of 3 percent on the next $900,000. 88 (e) At the rate of 2.5 percent for all above $1 million and 89 not exceeding $3 million. 90 (f) At the rate of 2 percent for all above $3 million and 91 not exceeding $5 million. 92 (g) At the rate of 1.5 percent for all above $5 million and 93 not exceeding $10 million. 94 (h) At the rate of 1 percent for all above $10 million. 95 (4) Subject to subsection (2), in addition to fees for 96 ordinary services, the attorney for the personal representative 97 shall be allowed further reasonable compensation for any 98 extraordinary service. What is an extraordinary service may vary 99 depending on many factors, including the size and complexity of 100 the estate. Extraordinary services may include, but are not 101 limited to: 102 (a) Involvement in a will contest, will construction, a 103 proceeding for determination of beneficiaries, a contested 104 claim, elective share proceeding, apportionment of estate taxes, 105 or any adversarial proceeding or litigation by or against the 106 estate. 107 (b) Representation of the personal representative in audit 108 or any proceeding for adjustment, determination, or collection 109 of any taxes. 110 (c) Tax advice on postmortem tax planning, including, but 111 not limited to, disclaimer, renunciation of fiduciary 112 commission, alternate valuation date, allocation of 113 administrative expenses between tax returns, the QTIP or reverse 114 QTIP election, allocation of GST exemption, qualification for 115 Internal Revenue Code ss. 6166 and 303 privileges, deduction of 116 last illness expenses, fiscal year planning, distribution 117 planning, asset basis considerations, handling income or 118 deductions in respect of a decedent, valuation discounts, 119 special use and other valuation, handling employee benefit or 120 retirement proceeds, prompt assessment request, or request for 121 release of personal liability for payment of tax. 122 (d) Review of estate tax return and preparation or review 123 of other tax returns required to be filed by the personal 124 representative. 125 (e) Preparation of the estate’s federal estate tax return. 126 If this return is prepared by the attorney, a fee of one-half of 127 1 percent up to a value of $10 million and one-fourth of 1 128 percent on the value in excess of $10 million of the gross 129 estate as finally determined for federal estate tax purposes, is 130 presumed to be reasonable compensation for the attorney for this 131 service. These fees shall include services for routine audit of 132 the return, not beyond the examining agent level, if required. 133 (f) Purchase, sale, lease, or encumbrance of real property 134 by the personal representative or involvement in zoning, land 135 use, environmental, or other similar matters. 136 (g) Legal advice regarding carrying on of the decedent’s 137 business or conducting other commercial activity by the personal 138 representative. 139 (h) Legal advice regarding claims for damage to the 140 environment or related procedures. 141 (i) Legal advice regarding homestead status of real 142 property or proceedings involving that status and services 143 related to protected homestead. 144 (j) Involvement in fiduciary, employee, or attorney 145 compensation disputes. 146 (k) Proceedings involving ancillary administration of 147 assets not subject to administration in this state. 148 (5) Upon petition of any interested person, the court may 149 increase or decrease the compensation for ordinary services of 150 the attorney or award compensation for extraordinary services if 151 the facts and circumstances of the particular administration 152 warrant. In determining reasonable compensation, the court shall 153 consider all of the following factors, giving weight to each as 154 it determines to be appropriate: 155 (a) The promptness, efficiency, and skill with which the 156 administration was handled by the attorney. 157 (b) The responsibilities assumed by and the potential 158 liabilities of the attorney. 159 (c) The nature and value of the assets that are affected by 160 the decedent’s death. 161 (d) The benefits or detriments resulting to the estate or 162 interested persons from the attorney’s services. 163 (e) The complexity or simplicity of the administration and 164 the novelty of issues presented. 165 (f) The attorney’s participation in tax planning for the 166 estate and the estate’s beneficiaries and tax return 167 preparation, review, or approval. 168 (g) The nature of the probate, nonprobate, and exempt 169 assets, the expenses of administration, the liabilities of the 170 decedent, and the compensation paid to other professionals and 171 fiduciaries. 172 (h) Any delay in payment of the compensation after the 173 services were furnished. 174 (i) Any agreement relating to the attorney’s compensation 175 and whether written disclosures were made to the personal 176 representative in a timely manner under the circumstances 177 pursuant to subsection (2). 178 (j) Any other relevant factors. 179 (6) If a separate written agreement regarding compensation 180 exists between the attorney and the decedent, the attorney shall 181 furnish a copy to the personal representative prior to 182 commencement of employment, and, if employed, shall promptly 183 file and serve a copy on all interested persons.NeitherA 184 separate agreement ornora provision in the will suggesting or 185 directing that the personal representative retain a specific 186 attorney does notwillobligate the personal representative to 187 employ the attorney or obligate the attorney to accept the 188 representation, but if the attorney who is a party to the 189 agreement or who drafted the will is employed, the compensation 190 paid shall not exceed the compensation provided in the agreement 191 or in the will. 192 Section 2. Present paragraph (i) of subsection (6) of 193 section 736.1007, Florida Statutes, is redesignated as paragraph 194 (j), a new paragraph (i) is added to that subsection, and 195 subsections (1), (2), (3), and (5) of that section are amended, 196 to read: 197 736.1007 Trustee’s attorney fees.— 198 (1)(a) Except as provided in paragraph (d), if the trustee 199 of a revocable trust retains an attorney to render legal 200 services in connection with the initial administration of the 201 trust, the attorney is entitled to reasonable compensation for 202 those legal services, payable from the assets of the trust, 203 subject to s. 736.0802(10), without court order. The trustee and 204 the attorney may agree to compensation that is determined in a 205 manner or amount other than the manner or amount provided in 206 this section. The agreement is not binding on a person who bears 207 the impact of the compensation unless that person is a party to 208 or otherwise consents to be bound by the agreement. The 209 agreement may provide that the trustee is not individually 210 liable for the attorney fees and costs. 211 (b) An attorney representing a trustee in the initial 212 administration of the trust who intends to charge a fee based 213 upon the schedule set forth in subsection (2) shall make the 214 following disclosures in writing to the trustee: 215 1. There is not a mandatory statutory attorney fee for 216 trust administration. 217 2. The attorney fee is not required to be based on the size 218 of the trust, and the presumed reasonable fee provided in 219 subsection (2) may not be appropriate in all trust 220 administrations. 221 3. The fee is subject to negotiation between the trustee 222 and the attorney. 223 4. The selection of the attorney is made at the discretion 224 of the trustee, who is not required to select the attorney who 225 prepared the trust. 226 5. The trustee shall be entitled to a summary of ordinary 227 and extraordinary services rendered for the fees agreed upon at 228 the conclusion of the representation. The summary shall be 229 provided by counsel and shall consist of the total hours devoted 230 to the representation or a detailed summary of the services 231 performed during the representation. 232 (c) The attorney shall obtain the trustee’s timely 233 signature acknowledging the disclosures. 234 (d) If the attorney does not make the disclosures required 235 by this section, the attorney may not be paid for legal services 236 without prior court approval of the fees or the written consent 237 of the trustee and all qualified beneficiaries. 238 (2) Unless otherwise agreed and subject to subsection (1), 239 compensation based on the value of the trust assets immediately 240 following the settlor’s death and the income earned by the trust 241 during initial administration at the rate of 75 percent of the 242 schedule provided in s. 733.6171(3)(a)-(h) is presumed to be 243 reasonable total compensation for ordinary services of all 244 attorneys employed generally to advise a trustee concerning the 245 trustee’s duties in the initial trust administration. 246 (3) Subject to subsection (1), an attorney who is retained 247 to render only limited and specifically defined legal services 248 shall be compensated as provided in the retaining agreement. If 249 the amount or method of determining compensation is not provided 250 in the agreement, the attorney is entitled to a reasonable fee, 251 taking into account the factors set forth in subsection (6). 252 (5) Subject to subsection (1), in addition to the 253 attorney’s fees for ordinary services, the attorney for the 254 trustee shall be allowed further reasonable compensation for any 255 extraordinary service. What constitutes an extraordinary service 256 may vary depending on many factors, including the size and 257 complexity of the trust. Extraordinary services may include, but 258 are not limited to: 259 (a) Involvement in a trust contest, trust construction, a 260 proceeding for determination of beneficiaries, a contested 261 claim, elective share proceedings, apportionment of estate 262 taxes, or other adversary proceedings or litigation by or 263 against the trust. 264 (b) Representation of the trustee in an audit or any 265 proceeding for adjustment, determination, or collection of any 266 taxes. 267 (c) Tax advice on postmortem tax planning, including, but 268 not limited to, disclaimer, renunciation of fiduciary 269 commission, alternate valuation date, allocation of 270 administrative expenses between tax returns, the QTIP or reverse 271 QTIP election, allocation of GST exemption, qualification for 272 Internal Revenue Code ss. 303 and 6166 privileges, deduction of 273 last illness expenses, distribution planning, asset basis 274 considerations, throwback rules, handling income or deductions 275 in respect of a decedent, valuation discounts, special use and 276 other valuation, handling employee benefit or retirement 277 proceeds, prompt assessment request, or request for release from 278 personal liability for payment of tax. 279 (d) Review of an estate tax return and preparation or 280 review of other tax returns required to be filed by the trustee. 281 (e) Preparation of decedent’s federal estate tax return. If 282 this return is prepared by the attorney, a fee of one-half of 1 283 percent up to a value of $10 million and one-fourth of 1 percent 284 on the value in excess of $10 million, of the gross estate as 285 finally determined for federal estate tax purposes, is presumed 286 to be reasonable compensation for the attorney for this service. 287 These fees shall include services for routine audit of the 288 return, not beyond the examining agent level, if required. 289 (f) Purchase, sale, lease, or encumbrance of real property 290 by the trustee or involvement in zoning, land use, 291 environmental, or other similar matters. 292 (g) Legal advice regarding carrying on of decedent’s 293 business or conducting other commercial activity by the trustee. 294 (h) Legal advice regarding claims for damage to the 295 environment or related procedures. 296 (i) Legal advice regarding homestead status of trust real 297 property or proceedings involving the status. 298 (j) Involvement in fiduciary, employee, or attorney 299 compensation disputes. 300 (k) Considerations of special valuation of trust assets, 301 including discounts for blockage, minority interests, lack of 302 marketability, and environmental liability. 303 (6) Upon petition of any interested person in a proceeding 304 to review the compensation paid or to be paid to the attorney 305 for the trustee, the court may increase or decrease the 306 compensation for ordinary services of the attorney for the 307 trustee or award compensation for extraordinary services if the 308 facts and circumstances of the particular administration 309 warrant. In determining reasonable compensation, the court shall 310 consider all of the following factors giving such weight to each 311 as the court may determine to be appropriate: 312 (i) Any agreement relating to the attorney’s compensation 313 and whether written disclosures were made to the trustee in a 314 timely manner under the circumstances pursuant to paragraph 315 (1)(b). 316 Section 3. This act applies to initial estate and initial 317 trust administrations commenced on or after October 1, 2021. 318 Section 4. This act shall take effect October 1, 2021.