Sec. 733.106(4), Fla. Stat. reads:

When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. [Emphasis added]

In In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990), the court held that before the trial court may assesses fees against a beneficiary’s share of an estate pursuant to §733.106(4), there must be a finding of bad faith or wrongdoing by the beneficiary which would warrant such an assessment.

Additionally, §733.6175(2), Fla. Stat. reads:

Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid. [Emphasis added]

In Geary v. Butzel Long, 13 So. 3d 149 (Fla. 4th DCA 2009), the court expanded the holding in Estate of Lane and held that before the trial court may assesses fees against a beneficiary’s share of an estate pursuant to §733.6175(2), there must be a finding of bad faith, wrongdoing, or frivolous litigation by the beneficiary which would warrant such an assessment.

“Frivolous” is defined as “of little weight or importance; having no basis in law or fact; light, slight, sham, irrelevant, superficial.” SeeAllen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980), citing Webster’s Third New International Dictionary (1976). A frivolous claim is “one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed” [Wiggins v. Southern Management Corp., 629 So. 2d 1022 (Fla. 4th DCA 1993], or the action is “so clearly devoid of merit, both on the facts and the law, as to be completely untenable”. [United Cos. Fin. Corp. v. Hughes, 460 So. 2d 585 (Fla. 2d DCA 1984)]. “A frivolous argument is one which is so devoid of merit that it can be determined without argument or research.” SeeSmalbein v. Volusia County Sch. Bd., 801 So. 2d 169 (Fla. 5th DCA 2001), footnote 3.

Query, does the same rule apply to trusts? Refer to §§736.1004(2), 736.1005(2), 736.1006(2), and 736.1007(9), Fla. Stat.

736.1004 Attorney’s fees and costs.

(1)(a) In all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee’s powers; and

(b) In proceedings arising under ss. 736.0410 736.0417, the court shall award taxable costs as in chancery actions, including attorney fees and guardian ad litem fees.

(2) When awarding taxable costs under this section, including attorney fees and guardian ad litem fees, the court, in its discretion, may direct payment from a party’s interest, if any, in the trust or enter a judgment that may be satisfied from other property of the party, or both.

History. s. 10, ch. 2006 217.

736.1005 Attorney’s fees for services to the trust.

(1) Any attorney who has rendered services to a trust may be awarded reasonable compensation from the trust. The attorney may apply to the court for an order awarding attorney’s fees and, after notice and service on the trustee and all beneficiaries entitled to an accounting under s. 736.0813, the court shall enter an order on the fee application.

(2) Whenever attorney’s fees are to be paid out of the trust, the court, in its discretion, may direct from what part of the trust the fees shall be paid.

(3) Except when a trustee’s interest may be adverse in a particular matter, the attorney shall give reasonable notice in writing to the trustee of the attorney’s retention by an interested person and the attorney’s entitlement to fees pursuant to this section. A court may reduce any fee award for services rendered by the attorney prior to the date of actual notice to the trustee, if the actual notice date is later than a date of reasonable notice. In exercising this discretion, the court may exclude compensation for services rendered after the reasonable notice date but prior to the date of actual notice.

History. s. 10, ch. 2006 217.

736.1006 Costs in trust proceedings.

(1) In all trust proceedings, costs may be awarded as in chancery actions.

(2) Whenever costs are to be paid out of the trust, the court, in its discretion, may direct from what part of the trust the costs shall be paid.

History. s. 10, ch. 2006 217.

736.1007 Trustee’s attorney’s fees.—

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(9) Court proceedings to determine compensation, if required, are a part of the trust administration process, and the costs, including fees for the trustee’s attorney, shall be determined by the court and paid from the assets of the trust unless the court finds the attorney’s fees request to be substantially unreasonable. The court shall direct from what part of the trust the fees are to be paid.