PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Assessing Attorney’s Fees and Costs against a Beneficiary’s Interest

As a general rule, in trust and estate litigation, the court has the discretion to assess attorney’s fees and costs against a beneficiary’s interest. The relevant statutes read in part:

  • 733.106: ¶(4)(b) All or any part of the costs and attorney fees to be paid from the estate may be assessed against one or more persons’ part of the estate in such proportions as the court finds to be just and proper.
  • 736.1004: ¶(1)(b) In proceedings arising under ss. 736.0410-736.0417, the court shall award taxable costs as in chancery[1] 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.
  • 736.1005: ¶(2)(a) All or any part of the attorney fees to be paid from the trust may be assessed against one or more persons’ part of the trust in such proportions as the court finds to be just and proper.
  • 736.1006: ¶(1) In all trust proceedings, costs may be awarded as in chancery actions. ¶(2) If costs are to be paid from the trust under subsection (1) or s. 733.106(4)(a), the court, in its discretion, may direct from what part of the trust the costs shall be paid. All or any part of the costs to be paid from the trust may be assessed against one or more persons’ part of the trust in such proportions as the court finds to be just and proper….

To further complicate this issue, the Fourth District Court of Appeal has construed §733.106 to require that the trial court must find “wrongful conduct, bad faith or frivolousness” as a prerequisite to assessing attorney’s fees and costs against a beneficiary’s interest in an estate.[2] Pursuant to the Legislative White Paper[3], this judicially created standard finds no textual support in the statute and imposes a standard for the assessment of fees that is inconsistent with comments made in Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994) and contrary to the finding in Williams v. King, 711 So. 2d 1285 (Fla. 5th DCA 1998). To correct this inconsistency, the legislature amended §§733.106, 736.1005, and 736.1006 (affective July 1, 2015) to read that the court may assess a person’s part of the estate and trust without finding that the person engaged in bad faith, wrongdoing, or frivolousness. Unfortunately, this same verbiage is not included in §§736.1004, F.S. As a result, it is still uncertain as to the applicability of this judicially created standard.

When there are multiple claims involved, chancery gives the court more flexibility than under the prevailing party/significant issue standard used in non-trust/probate cases as defined in Moritz v. Hoyt Enters., 604 So. 2d 807 (Fla. 1992). As a result, in awarding fees and costs to a party, the court should consider the benefits to the estate/trust and the proper allocation of fees and costs to each issue, as opposed to each count of the complaint/petition. See,Nalls v. Millender, 721 So. 2d 426 (Fla. 4th DCA 1998); In re Estate of Simon, 549 So. 2d 210 (Fla. 3rd DCA 1989).

[1]The well settled rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party. See, Nalls v. Millender, 721 So. 2d 426 (Fla. 4th DCA 1998). The same rule applies to attorney’s fees. See, Id.; In re Estate of Simon, 549 So. 2d 210 (Fla. 3rd DCA 1989).

[2]See,Levin v. Levin, 67 So. 3d 429 (Fla. 4th DCA 2011); Geary v. Butzel Long, P.C., 13 So. 3d 149 (Fla. 4th DCA 2009); In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990).

[3]The Real Property, Probate, & Trust Law Section of The Florida Bar, Legislative White Paper: Proposed F.S. 733.106(4), 736.1005(2), and 736.1006(2) (2015) (on file with the Senate Committee on Judiciary, dated 8/26/14).