Florida Senate - 2019                                    SB 1276
       
       
        
       By Senator Bean
       
       
       
       
       
       4-00664C-19                                           20191276__
    1                        A bill to be entitled                      
    2         An act relating to attorney compensation; amending s.
    3         733.6171, F.S.; requiring an attorney who accepts
    4         certain engagements to obtain a fee disclosure
    5         statement signed by the person responsible for
    6         administering an estate; requiring such disclosure
    7         statement to contain certain statements; deleting
    8         provisions relating to the determination of reasonable
    9         compensation for attorneys of personal
   10         representatives; deleting provisions relating to
   11         petitions to increase or decrease compensation for
   12         such attorneys; amending s. 736.1007, F.S.; deleting
   13         provisions relating to the determination of reasonable
   14         compensation for attorneys of trustees; deleting
   15         provisions relating to petitions to increase or
   16         decrease compensation for such attorneys; amending ss.
   17         733.106 and 736.1005, F.S.; conforming provisions to
   18         changes made by the act; providing an effective date.
   19          
   20  Be It Enacted by the Legislature of the State of Florida:
   21  
   22         Section 1. Section 733.6171, Florida Statutes, is amended
   23  to read:
   24         733.6171 Compensation of attorney for the personal
   25  representative.—
   26         (1) Attorneys for personal representatives are shall be
   27  entitled to reasonable compensation payable from the estate
   28  assets without court order. An attorney accepting an engagement
   29  to represent an estate in probate or other administration must
   30  obtain a fee disclosure statement signed by the person
   31  responsible for administering the estate. Such statement must
   32  specify all of the following:
   33         (a) The attorney fee for representing the estate in probate
   34  matters is not set by law and is not required to be based on the
   35  size of the estate.
   36         (b) The fee is subject to negotiation between the personal
   37  representative and the attorney.
   38         (c) The selection of the attorney to represent the estate
   39  is at the discretion of the personal representative and the
   40  personal representative is not required to select the attorney
   41  who drafted the will.
   42         (2) The attorney, the personal representative, and persons
   43  bearing the impact of the compensation may agree to compensation
   44  determined in a different manner than provided in this section.
   45  Compensation may also be determined in a different manner than
   46  provided in this section if the manner is disclosed to the
   47  parties bearing the impact of the compensation and if no
   48  objection is made as provided for in the Florida Probate Rules.
   49         (3) Compensation for ordinary services of attorneys in
   50  formal estate administration is presumed to be reasonable if
   51  based on the compensable value of the estate, which is the
   52  inventory value of the probate estate assets and the income
   53  earned by the estate during the administration as provided in
   54  the following schedule:
   55         (a) One thousand five hundred dollars for estates having a
   56  value of $40,000 or less.
   57         (b) An additional $750 for estates having a value of more
   58  than $40,000 and not exceeding $70,000.
   59         (c) An additional $750 for estates having a value of more
   60  than $70,000 and not exceeding $100,000.
   61         (d) For estates having a value in excess of $100,000, at
   62  the rate of 3 percent on the next $900,000.
   63         (e) At the rate of 2.5 percent for all above $1 million and
   64  not exceeding $3 million.
   65         (f) At the rate of 2 percent for all above $3 million and
   66  not exceeding $5 million.
   67         (g) At the rate of 1.5 percent for all above $5 million and
   68  not exceeding $10 million.
   69         (h) At the rate of 1 percent for all above $10 million.
   70         (4) In addition to fees for ordinary services, the attorney
   71  for the personal representative shall be allowed further
   72  reasonable compensation for any extraordinary service. What is
   73  an extraordinary service may vary depending on many factors,
   74  including the size of the estate. Extraordinary services may
   75  include, but are not limited to:
   76         (a) Involvement in a will contest, will construction, a
   77  proceeding for determination of beneficiaries, a contested
   78  claim, elective share proceeding, apportionment of estate taxes,
   79  or any adversarial proceeding or litigation by or against the
   80  estate.
   81         (b) Representation of the personal representative in audit
   82  or any proceeding for adjustment, determination, or collection
   83  of any taxes.
   84         (c) Tax advice on postmortem tax planning, including, but
   85  not limited to, disclaimer, renunciation of fiduciary
   86  commission, alternate valuation date, allocation of
   87  administrative expenses between tax returns, the QTIP or reverse
   88  QTIP election, allocation of GST exemption, qualification for
   89  Internal Revenue Code ss. 6166 and 303 privileges, deduction of
   90  last illness expenses, fiscal year planning, distribution
   91  planning, asset basis considerations, handling income or
   92  deductions in respect of a decedent, valuation discounts,
   93  special use and other valuation, handling employee benefit or
   94  retirement proceeds, prompt assessment request, or request for
   95  release of personal liability for payment of tax.
   96         (d) Review of estate tax return and preparation or review
   97  of other tax returns required to be filed by the personal
   98  representative.
   99         (e) Preparation of the estate’s federal estate tax return.
  100  If this return is prepared by the attorney, a fee of one-half of
  101  1 percent up to a value of $10 million and one-fourth of 1
  102  percent on the value in excess of $10 million of the gross
  103  estate as finally determined for federal estate tax purposes, is
  104  presumed to be reasonable compensation for the attorney for this
  105  service. These fees shall include services for routine audit of
  106  the return, not beyond the examining agent level, if required.
  107         (f) Purchase, sale, lease, or encumbrance of real property
  108  by the personal representative or involvement in zoning, land
  109  use, environmental, or other similar matters.
  110         (g) Legal advice regarding carrying on of the decedent’s
  111  business or conducting other commercial activity by the personal
  112  representative.
  113         (h) Legal advice regarding claims for damage to the
  114  environment or related procedures.
  115         (i) Legal advice regarding homestead status of real
  116  property or proceedings involving that status and services
  117  related to protected homestead.
  118         (j) Involvement in fiduciary, employee, or attorney
  119  compensation disputes.
  120         (k) Proceedings involving ancillary administration of
  121  assets not subject to administration in this state.
  122         (5) Upon petition of any interested person, the court may
  123  increase or decrease the compensation for ordinary services of
  124  the attorney or award compensation for extraordinary services if
  125  the facts and circumstances of the particular administration
  126  warrant. In determining reasonable compensation, the court shall
  127  consider all of the following factors, giving weight to each as
  128  it determines to be appropriate:
  129         (a) The promptness, efficiency, and skill with which the
  130  administration was handled by the attorney.
  131         (b) The responsibilities assumed by and the potential
  132  liabilities of the attorney.
  133         (c) The nature and value of the assets that are affected by
  134  the decedent’s death.
  135         (d) The benefits or detriments resulting to the estate or
  136  interested persons from the attorney’s services.
  137         (e) The complexity or simplicity of the administration and
  138  the novelty of issues presented.
  139         (f) The attorney’s participation in tax planning for the
  140  estate and the estate’s beneficiaries and tax return
  141  preparation, review, or approval.
  142         (g) The nature of the probate, nonprobate, and exempt
  143  assets, the expenses of administration, the liabilities of the
  144  decedent, and the compensation paid to other professionals and
  145  fiduciaries.
  146         (h) Any delay in payment of the compensation after the
  147  services were furnished.
  148         (i) Any other relevant factors.
  149         (2)(6) If a separate written agreement regarding
  150  compensation exists between the attorney and the decedent, the
  151  attorney must shall furnish a copy to the personal
  152  representative prior to commencement of employment, and, if
  153  employed, must shall promptly file and serve a copy on all
  154  interested persons. Neither A separate agreement or nor a
  155  provision in the will suggesting or directing that the personal
  156  representative retain a specific attorney does not will obligate
  157  the personal representative to employ the attorney or obligate
  158  the attorney to accept the representation, but if the attorney
  159  who is a party to the agreement or who drafted the will is
  160  employed, the compensation paid may shall not exceed the
  161  compensation provided in the agreement or in the will.
  162         Section 2. Section 736.1007, Florida Statutes, is amended
  163  to read:
  164         736.1007 Trustee’s attorney fees.—
  165         (1) If the trustee of a revocable trust retains an attorney
  166  to render legal services in connection with the initial
  167  administration of the trust, the attorney is entitled to
  168  reasonable compensation for those legal services, payable from
  169  the assets of the trust, subject to s. 736.0802(10), without
  170  court order. The trustee and the attorney may agree to
  171  compensation that is determined in a manner or amount other than
  172  the manner or amount provided in this section. The agreement is
  173  not binding on a person who bears the impact of the compensation
  174  unless that person is a party to or otherwise consents to be
  175  bound by the agreement. The agreement may provide that the
  176  trustee is not individually liable for the attorney fees and
  177  costs.
  178         (2) Unless otherwise agreed, compensation based on the
  179  value of the trust assets immediately following the settlor’s
  180  death and the income earned by the trust during initial
  181  administration at the rate of 75 percent of the schedule
  182  provided in s. 733.6171(3)(a)-(h) is presumed to be reasonable
  183  total compensation for ordinary services of all attorneys
  184  employed generally to advise a trustee concerning the trustee’s
  185  duties in initial trust administration.
  186         (3) An attorney who is retained to render only limited and
  187  specifically defined legal services shall be compensated as
  188  provided in the retaining agreement. If the amount or method of
  189  determining compensation is not provided in the agreement, the
  190  attorney is entitled to a reasonable fee, taking into account
  191  the factors set forth in subsection (6).
  192         (4) Ordinary services of the attorney in an initial trust
  193  administration include legal advice and representation
  194  concerning the trustee’s duties relating to:
  195         (a) Review of the trust instrument and each amendment for
  196  legal sufficiency and interpretation.
  197         (b) Implementation of substitution of the successor
  198  trustee.
  199         (c) Persons who must or should be served with required
  200  notices and the method and timing of such service.
  201         (d) The obligation of a successor to require a former
  202  trustee to provide an accounting.
  203         (e) The trustee’s duty to protect, insure, and manage trust
  204  assets and the trustee’s liability relating to these duties.
  205         (f) The trustee’s duty regarding investments imposed by the
  206  prudent investor rule.
  207         (g) The trustee’s obligation to inform and account to
  208  beneficiaries and the method of satisfaction of such
  209  obligations, the liability of the trust and trustee to the
  210  settlor’s creditors, and the advisability or necessity for
  211  probate proceedings to bar creditors.
  212         (h) Contributions due to the personal representative of the
  213  settlor’s estate for payment of expenses of administration and
  214  obligations of the settlor’s estate.
  215         (i) Identifying tax returns required to be filed by the
  216  trustee, the trustee’s liability for payment of taxes, and the
  217  due date of returns.
  218         (j) Filing a nontaxable affidavit, if not filed by a
  219  personal representative.
  220         (k) Order of payment of expenses of administration of the
  221  trust and order and priority of abatement of trust
  222  distributions.
  223         (l) Distribution of income or principal to beneficiaries or
  224  funding of further trusts provided in the governing instrument.
  225         (m) Preparation of any legal documents required to effect
  226  distribution.
  227         (n) Fiduciary duties, avoidance of self-dealing, conflicts
  228  of interest, duty of impartiality, and obligations to
  229  beneficiaries.
  230         (o) If there is a conflict of interest between a trustee
  231  who is a beneficiary and other beneficiaries of the trust,
  232  advice to the trustee on limitations of certain authority of the
  233  trustee regarding discretionary distributions or exercise of
  234  certain powers and alternatives for appointment of an
  235  independent trustee and appropriate procedures.
  236         (p) Procedures for the trustee’s discharge from liability
  237  for administration of the trust on termination or resignation.
  238         (5) In addition to the attorney’s fees for ordinary
  239  services, the attorney for the trustee shall be allowed further
  240  reasonable compensation for any extraordinary service. What
  241  constitutes an extraordinary service may vary depending on many
  242  factors, including the size of the trust. Extraordinary services
  243  may include, but are not limited to:
  244         (a) Involvement in a trust contest, trust construction, a
  245  proceeding for determination of beneficiaries, a contested
  246  claim, elective share proceedings, apportionment of estate
  247  taxes, or other adversary proceedings or litigation by or
  248  against the trust.
  249         (b) Representation of the trustee in an audit or any
  250  proceeding for adjustment, determination, or collection of any
  251  taxes.
  252         (c) Tax advice on postmortem tax planning, including, but
  253  not limited to, disclaimer, renunciation of fiduciary
  254  commission, alternate valuation date, allocation of
  255  administrative expenses between tax returns, the QTIP or reverse
  256  QTIP election, allocation of GST exemption, qualification for
  257  Internal Revenue Code ss. 303 and 6166 privileges, deduction of
  258  last illness expenses, distribution planning, asset basis
  259  considerations, throwback rules, handling income or deductions
  260  in respect of a decedent, valuation discounts, special use and
  261  other valuation, handling employee benefit or retirement
  262  proceeds, prompt assessment request, or request for release from
  263  personal liability for payment of tax.
  264         (d) Review of an estate tax return and preparation or
  265  review of other tax returns required to be filed by the trustee.
  266         (e) Preparation of decedent’s federal estate tax return. If
  267  this return is prepared by the attorney, a fee of one-half of 1
  268  percent up to a value of $10 million and one-fourth of 1 percent
  269  on the value in excess of $10 million, of the gross estate as
  270  finally determined for federal estate tax purposes, is presumed
  271  to be reasonable compensation for the attorney for this service.
  272  These fees shall include services for routine audit of the
  273  return, not beyond the examining agent level, if required.
  274         (f) Purchase, sale, lease, or encumbrance of real property
  275  by the trustee or involvement in zoning, land use,
  276  environmental, or other similar matters.
  277         (g) Legal advice regarding carrying on of decedent’s
  278  business or conducting other commercial activity by the trustee.
  279         (h) Legal advice regarding claims for damage to the
  280  environment or related procedures.
  281         (i) Legal advice regarding homestead status of trust real
  282  property or proceedings involving the status.
  283         (j) Involvement in fiduciary, employee, or attorney
  284  compensation disputes.
  285         (k) Considerations of special valuation of trust assets,
  286  including discounts for blockage, minority interests, lack of
  287  marketability, and environmental liability.
  288         (6) Upon petition of any interested person in a proceeding
  289  to review the compensation paid or to be paid to the attorney
  290  for the trustee, the court may increase or decrease the
  291  compensation for ordinary services of the attorney for the
  292  trustee or award compensation for extraordinary services if the
  293  facts and circumstances of the particular administration
  294  warrant. In determining reasonable compensation, the court shall
  295  consider all of the following factors giving such weight to each
  296  as the court may determine to be appropriate:
  297         (a) The promptness, efficiency, and skill with which the
  298  initial administration was handled by the attorney.
  299         (b) The responsibilities assumed by, and potential
  300  liabilities of, the attorney.
  301         (c) The nature and value of the assets that are affected by
  302  the decedent’s death.
  303         (d) The benefits or detriments resulting to the trust or
  304  the trust’s beneficiaries from the attorney’s services.
  305         (e) The complexity or simplicity of the administration and
  306  the novelty of issues presented.
  307         (f) The attorney’s participation in tax planning for the
  308  estate, the trust, and the trust’s beneficiaries and tax return
  309  preparation or review and approval.
  310         (g) The nature of the trust assets, the expenses of
  311  administration, and the claims payable by the trust and the
  312  compensation paid to other professionals and fiduciaries.
  313         (h) Any delay in payment of the compensation after the
  314  services were furnished.
  315         (i) Any other relevant factors.
  316         (2)(7) If a separate written agreement regarding
  317  compensation exists between the attorney and the settlor, the
  318  attorney must shall furnish a copy to the trustee prior to
  319  commencement of employment and, if employed, must shall promptly
  320  file and serve a copy on all interested persons. A separate
  321  agreement or a provision in the trust suggesting or directing
  322  the trustee to retain a specific attorney does not obligate the
  323  trustee to employ the attorney or obligate the attorney to
  324  accept the representation but, if the attorney who is a party to
  325  the agreement or who drafted the trust is employed, the
  326  compensation paid may shall not exceed the compensation provided
  327  in the agreement.
  328         (8) As used in this section, the term “initial trust
  329  administration” means administration of a revocable trust during
  330  the period that begins with the death of the settlor and ends on
  331  the final distribution of trust assets outright or to continuing
  332  trusts created under the trust agreement but, if an estate tax
  333  return is required, not until after issuance of an estate tax
  334  closing letter or other evidence of termination of the estate
  335  tax proceeding. This initial period is not intended to include
  336  continued regular administration of the trust.
  337         Section 3. Subsection (4) of section 733.106, Florida
  338  Statutes, is amended to read:
  339         733.106 Costs and attorney fees.—
  340         (4) If costs and attorney fees are to be paid from the
  341  estate under this section, s. 733.6171(4), s. 736.1005, or s.
  342  736.1006, the court, in its discretion, may direct from what
  343  part of the estate they shall be paid.
  344         (a) If the court directs an assessment against a person’s
  345  part of the estate and such part is insufficient to fully pay
  346  the assessment, the court may direct payment from the person’s
  347  part of a trust, if any, if a pour-over will is involved and the
  348  matter is interrelated with the trust.
  349         (b) All or any part of the costs and attorney fees to be
  350  paid from the estate may be assessed against one or more
  351  persons’ part of the estate in such proportions as the court
  352  finds to be just and proper.
  353         (c) In the exercise of its discretion, the court may
  354  consider the following factors:
  355         1. The relative impact of an assessment on the estimated
  356  value of each person’s part of the estate.
  357         2. The amount of costs and attorney fees to be assessed
  358  against a person’s part of the estate.
  359         3. The extent to which a person whose part of the estate is
  360  to be assessed, individually or through counsel, actively
  361  participated in the proceeding.
  362         4. The potential benefit or detriment to a person’s part of
  363  the estate expected from the outcome of the proceeding.
  364         5. The relative strength or weakness of the merits of the
  365  claims, defenses, or objections, if any, asserted by a person
  366  whose part of the estate is to be assessed.
  367         6. Whether a person whose part of the estate is to be
  368  assessed was a prevailing party with respect to one or more
  369  claims, defenses, or objections.
  370         7. Whether a person whose part of the estate is to be
  371  assessed unjustly caused an increase in the amount of costs and
  372  attorney fees incurred by the personal representative or another
  373  interested person in connection with the proceeding.
  374         8. Any other relevant fact, circumstance, or equity.
  375         (d) The court may assess a person’s part of the estate
  376  without finding that the person engaged in bad faith,
  377  wrongdoing, or frivolousness.
  378         Section 4. Subsection (2) of section 736.1005, Florida
  379  Statutes, is amended to read:
  380         736.1005 Attorney fees for services to the trust.—
  381         (2) If attorney fees are to be paid from the trust under
  382  subsection (1), s. 736.1007(5)(a), or s. 733.106(4)(a), the
  383  court, in its discretion, may direct from what part of the trust
  384  the fees shall be paid.
  385         (a) All or any part of the attorney fees to be paid from
  386  the trust may be assessed against one or more persons’ part of
  387  the trust in such proportions as the court finds to be just and
  388  proper.
  389         (b) In the exercise of its discretion, the court may
  390  consider the following factors:
  391         1. The relative impact of an assessment on the estimated
  392  value of each person’s part of the trust.
  393         2. The amount of attorney fees to be assessed against a
  394  person’s part of the trust.
  395         3. The extent to which a person whose part of the trust is
  396  to be assessed, individually or through counsel, actively
  397  participated in the proceeding.
  398         4. The potential benefit or detriment to a person’s part of
  399  the trust expected from the outcome of the proceeding.
  400         5. The relative strength or weakness of the merits of the
  401  claims, defenses, or objections, if any, asserted by a person
  402  whose part of the trust is to be assessed.
  403         6. Whether a person whose part of the trust is to be
  404  assessed was a prevailing party with respect to one or more
  405  claims, defenses, or objections.
  406         7. Whether a person whose part of the trust is to be
  407  assessed unjustly caused an increase in the amount of attorney
  408  fees incurred by the trustee or another person in connection
  409  with the proceeding.
  410         8. Any other relevant fact, circumstance, or equity.
  411         (c) The court may assess a person’s part of the trust
  412  without finding that the person engaged in bad faith,
  413  wrongdoing, or frivolousness.
  414         Section 5. This act shall take effect July 1, 2019.