By: David M. Garten, Esq.
ARTICLE: Amendments to §§733.6171 and 736.107, F.S. (Eff. 10/1/21)
2021 has been a busy year for new probate and trust legislation. The legislature creating twenty-eight new statutes, amended thirteen statutes, and repealed one statute. Two of those amendments pertain to attorney’s fee. Effective October 1, 2021, both §733.6171, F.S. and §736.1007, F.S. were amended to require that if an attorney intends to use the statutory schedule for the determination of fees in an estate or initial trust administration, he must make specified disclosures to the fiduciary and must obtain his signature acknowledging receipt of such disclosures. These disclosures state that:
- There is not a mandatory statutory attorney fee for estate or trust administration;
- The attorney fee is not required to be based on the size of the estate or trust and that the presumption of reasonableness may not be appropriate to every estate administration;
- The fee is subject to negotiation between the PR/Trustee (“fiduciary”) and the attorney;
- The selection of the attorney is made at the discretion of the fiduciary;
- The fiduciary is entitled to a summary of ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation.
The amendments removed the presumption that compensation for ordinary services of attorneys in an estate/trust proceeding is reasonable if it is based on the compensable value of the estate/trust and allow alternate compensation methods and structures but keeps the schedule based on the value of the estate/trust as one of the options. Therefore, an attorney will not be limited to compensation for ordinary services based solely on the compensable value of the estate/trust. Instead, an attorney may choose to operate under a different compensation structure like a billable hourly rate and a retainer, a flat fee, or increased rates above what is established in the schedule of a reasonable fee. For a more in depth discussion on these amendments, see J. Grier Pressly, III, Esq.’s article entitled Alert! New Duty To Disclose Your Statutory Attorney Fee In Estate And Trust Administrations, ActionLine, Vol. XXXXIII, Fall 2021.