Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. CS for SB 954
       
       
       
       
       
       
                                Ì387788qÎ387788                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/20/2021           .                                
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       The Committee on Rules (Bean) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 733.6171, Florida Statutes, is amended
    6  to read:
    7         733.6171 Compensation of attorney for the personal
    8  representative.—
    9         (1) Except as provided in paragraph (2)(d), attorneys for
   10  personal representatives are shall be entitled to reasonable
   11  compensation payable from the estate assets without court order.
   12         (2)(a) The attorney, the personal representative, and
   13  persons bearing the impact of the compensation may agree to
   14  compensation determined in a different manner than provided in
   15  this section. Compensation may also be determined in a different
   16  manner than provided in this section if the manner is disclosed
   17  to the parties bearing the impact of the compensation and if no
   18  objection is made as provided for in the Florida Probate Rules.
   19         (b)An attorney representing a personal representative in
   20  an estate administration who intends to charge a fee based upon
   21  the schedule set forth in subsection (3) shall make the
   22  following disclosures in writing to the personal representative:
   23         1.There is not a mandatory statutory attorney fee for
   24  estate administration.
   25         2.The attorney fee is not required to be based on the size
   26  of the estate, and the presumed reasonable fee provided in
   27  subsection (3) may not be appropriate in all estate
   28  administrations.
   29         3.The fee is subject to negotiation between the personal
   30  representative and the attorney.
   31         4.The selection of the attorney is made at the discretion
   32  of the personal representative, who is not required to select
   33  the attorney who prepared the will.
   34         5.The personal representative shall be entitled to a
   35  summary of ordinary and extraordinary services rendered for the
   36  fees agreed upon at the conclusion of the representation. The
   37  summary shall be provided by counsel and shall consist of the
   38  total hours devoted to the representation or a detailed summary
   39  of the services performed during the representation.
   40         (c)The attorney shall obtain the personal representative’s
   41  timely signature acknowledging the disclosures.
   42         (d)If the attorney does not make the disclosures required
   43  by this section, the attorney may not be paid for legal services
   44  without prior court approval of the fees or the written consent
   45  of all interested parties.
   46         (3) Subject to subsection (2), compensation for ordinary
   47  services of attorneys in a formal estate administration is
   48  presumed to be reasonable if based on the compensable value of
   49  the estate, which is the inventory value of the probate estate
   50  assets and the income earned by the estate during the
   51  administration as provided in the following schedule:
   52         (a) One thousand five hundred dollars for estates having a
   53  value of $40,000 or less.
   54         (b) An additional $750 for estates having a value of more
   55  than $40,000 and not exceeding $70,000.
   56         (c) An additional $750 for estates having a value of more
   57  than $70,000 and not exceeding $100,000.
   58         (d) For estates having a value in excess of $100,000, at
   59  the rate of 3 percent on the next $900,000.
   60         (e) At the rate of 2.5 percent for all above $1 million and
   61  not exceeding $3 million.
   62         (f) At the rate of 2 percent for all above $3 million and
   63  not exceeding $5 million.
   64         (g) At the rate of 1.5 percent for all above $5 million and
   65  not exceeding $10 million.
   66         (h) At the rate of 1 percent for all above $10 million.
   67         (4) Subject to subsection (2), in addition to fees for
   68  ordinary services, the attorney for the personal representative
   69  shall be allowed further reasonable compensation for any
   70  extraordinary service. What is an extraordinary service may vary
   71  depending on many factors, including the size and complexity of
   72  the estate. Extraordinary services may include, but are not
   73  limited to:
   74         (a) Involvement in a will contest, will construction, a
   75  proceeding for determination of beneficiaries, a contested
   76  claim, elective share proceeding, apportionment of estate taxes,
   77  or any adversarial proceeding or litigation by or against the
   78  estate.
   79         (b) Representation of the personal representative in audit
   80  or any proceeding for adjustment, determination, or collection
   81  of any taxes.
   82         (c) Tax advice on postmortem tax planning, including, but
   83  not limited to, disclaimer, renunciation of fiduciary
   84  commission, alternate valuation date, allocation of
   85  administrative expenses between tax returns, the QTIP or reverse
   86  QTIP election, allocation of GST exemption, qualification for
   87  Internal Revenue Code ss. 6166 and 303 privileges, deduction of
   88  last illness expenses, fiscal year planning, distribution
   89  planning, asset basis considerations, handling income or
   90  deductions in respect of a decedent, valuation discounts,
   91  special use and other valuation, handling employee benefit or
   92  retirement proceeds, prompt assessment request, or request for
   93  release of personal liability for payment of tax.
   94         (d) Review of estate tax return and preparation or review
   95  of other tax returns required to be filed by the personal
   96  representative.
   97         (e) Preparation of the estate’s federal estate tax return.
   98  If this return is prepared by the attorney, a fee of one-half of
   99  1 percent up to a value of $10 million and one-fourth of 1
  100  percent on the value in excess of $10 million of the gross
  101  estate as finally determined for federal estate tax purposes, is
  102  presumed to be reasonable compensation for the attorney for this
  103  service. These fees shall include services for routine audit of
  104  the return, not beyond the examining agent level, if required.
  105         (f) Purchase, sale, lease, or encumbrance of real property
  106  by the personal representative or involvement in zoning, land
  107  use, environmental, or other similar matters.
  108         (g) Legal advice regarding carrying on of the decedent’s
  109  business or conducting other commercial activity by the personal
  110  representative.
  111         (h) Legal advice regarding claims for damage to the
  112  environment or related procedures.
  113         (i) Legal advice regarding homestead status of real
  114  property or proceedings involving that status and services
  115  related to protected homestead.
  116         (j) Involvement in fiduciary, employee, or attorney
  117  compensation disputes.
  118         (k) Proceedings involving ancillary administration of
  119  assets not subject to administration in this state.
  120         (5) Upon petition of any interested person, the court may
  121  increase or decrease the compensation for ordinary services of
  122  the attorney or award compensation for extraordinary services if
  123  the facts and circumstances of the particular administration
  124  warrant. In determining reasonable compensation, the court shall
  125  consider all of the following factors, giving weight to each as
  126  it determines to be appropriate:
  127         (a) The promptness, efficiency, and skill with which the
  128  administration was handled by the attorney.
  129         (b) The responsibilities assumed by and the potential
  130  liabilities of the attorney.
  131         (c) The nature and value of the assets that are affected by
  132  the decedent’s death.
  133         (d) The benefits or detriments resulting to the estate or
  134  interested persons from the attorney’s services.
  135         (e) The complexity or simplicity of the administration and
  136  the novelty of issues presented.
  137         (f) The attorney’s participation in tax planning for the
  138  estate and the estate’s beneficiaries and tax return
  139  preparation, review, or approval.
  140         (g) The nature of the probate, nonprobate, and exempt
  141  assets, the expenses of administration, the liabilities of the
  142  decedent, and the compensation paid to other professionals and
  143  fiduciaries.
  144         (h) Any delay in payment of the compensation after the
  145  services were furnished.
  146         (i) Any agreement relating to the attorney’s compensation
  147  and whether written disclosures were made to the personal
  148  representative in a timely manner under the circumstances
  149  pursuant to subsection (2).
  150         (j) Any other relevant factors.
  151         (6) If a separate written agreement regarding compensation
  152  exists between the attorney and the decedent, the attorney shall
  153  furnish a copy to the personal representative prior to
  154  commencement of employment, and, if employed, shall promptly
  155  file and serve a copy on all interested persons. Neither A
  156  separate agreement or nor a provision in the will suggesting or
  157  directing that the personal representative retain a specific
  158  attorney does not will obligate the personal representative to
  159  employ the attorney or obligate the attorney to accept the
  160  representation, but if the attorney who is a party to the
  161  agreement or who drafted the will is employed, the compensation
  162  paid shall not exceed the compensation provided in the agreement
  163  or in the will.
  164         Section 2. Present paragraph (i) of subsection (6) of
  165  section 736.1007, Florida Statutes, is redesignated as paragraph
  166  (j), a new paragraph (i) is added to that subsection, and
  167  subsections (1), (2), (3), and (5) of that section are amended,
  168  to read:
  169         736.1007 Trustee’s attorney fees.—
  170         (1)(a)Except as provided in paragraph (d), if the trustee
  171  of a revocable trust retains an attorney to render legal
  172  services in connection with the initial administration of the
  173  trust, the attorney is entitled to reasonable compensation for
  174  those legal services, payable from the assets of the trust,
  175  subject to s. 736.0802(10), without court order. The trustee and
  176  the attorney may agree to compensation that is determined in a
  177  manner or amount other than the manner or amount provided in
  178  this section. The agreement is not binding on a person who bears
  179  the impact of the compensation unless that person is a party to
  180  or otherwise consents to be bound by the agreement. The
  181  agreement may provide that the trustee is not individually
  182  liable for the attorney fees and costs.
  183         (b)An attorney representing a trustee in the initial
  184  administration of the trust who intends to charge a fee based
  185  upon the schedule set forth in subsection (2) shall make the
  186  following disclosures in writing to the trustee:
  187         1.There is not a mandatory statutory attorney fee for
  188  trust administration.
  189         2.The attorney fee is not required to be based on the size
  190  of the trust, and the presumed reasonable fee provided in
  191  subsection (2) may not be appropriate in all trust
  192  administrations.
  193         3.The fee is subject to negotiation between the trustee
  194  and the attorney.
  195         4.The selection of the attorney is made at the discretion
  196  of the trustee, who is not required to select the attorney who
  197  prepared the trust.
  198         5.The trustee shall be entitled to a summary of ordinary
  199  and extraordinary services rendered for the fees agreed upon at
  200  the conclusion of the representation. The summary shall be
  201  provided by counsel and shall consist of the total hours devoted
  202  to the representation or a detailed summary of the services
  203  performed during the representation.
  204         (c)The attorney shall obtain the trustee’s timely
  205  signature acknowledging the disclosures.
  206         (d)If the attorney does not make the disclosures required
  207  by this section, the attorney may not be paid for legal services
  208  without prior court approval of the fees or the written consent
  209  of the trustee and all qualified beneficiaries.
  210         (2) Unless otherwise agreed and subject to subsection (1),
  211  compensation based on the value of the trust assets immediately
  212  following the settlor’s death and the income earned by the trust
  213  during initial administration at the rate of 75 percent of the
  214  schedule provided in s. 733.6171(3)(a)-(h) is presumed to be
  215  reasonable total compensation for ordinary services of all
  216  attorneys employed generally to advise a trustee concerning the
  217  trustee’s duties in the initial trust administration.
  218         (3) Subject to subsection (1), an attorney who is retained
  219  to render only limited and specifically defined legal services
  220  shall be compensated as provided in the retaining agreement. If
  221  the amount or method of determining compensation is not provided
  222  in the agreement, the attorney is entitled to a reasonable fee,
  223  taking into account the factors set forth in subsection (6).
  224         (5) Subject to subsection (1), in addition to the
  225  attorney’s fees for ordinary services, the attorney for the
  226  trustee shall be allowed further reasonable compensation for any
  227  extraordinary service. What constitutes an extraordinary service
  228  may vary depending on many factors, including the size and
  229  complexity of the trust. Extraordinary services may include, but
  230  are not limited to:
  231         (a) Involvement in a trust contest, trust construction, a
  232  proceeding for determination of beneficiaries, a contested
  233  claim, elective share proceedings, apportionment of estate
  234  taxes, or other adversary proceedings or litigation by or
  235  against the trust.
  236         (b) Representation of the trustee in an audit or any
  237  proceeding for adjustment, determination, or collection of any
  238  taxes.
  239         (c) Tax advice on postmortem tax planning, including, but
  240  not limited to, disclaimer, renunciation of fiduciary
  241  commission, alternate valuation date, allocation of
  242  administrative expenses between tax returns, the QTIP or reverse
  243  QTIP election, allocation of GST exemption, qualification for
  244  Internal Revenue Code ss. 303 and 6166 privileges, deduction of
  245  last illness expenses, distribution planning, asset basis
  246  considerations, throwback rules, handling income or deductions
  247  in respect of a decedent, valuation discounts, special use and
  248  other valuation, handling employee benefit or retirement
  249  proceeds, prompt assessment request, or request for release from
  250  personal liability for payment of tax.
  251         (d) Review of an estate tax return and preparation or
  252  review of other tax returns required to be filed by the trustee.
  253         (e) Preparation of decedent’s federal estate tax return. If
  254  this return is prepared by the attorney, a fee of one-half of 1
  255  percent up to a value of $10 million and one-fourth of 1 percent
  256  on the value in excess of $10 million, of the gross estate as
  257  finally determined for federal estate tax purposes, is presumed
  258  to be reasonable compensation for the attorney for this service.
  259  These fees shall include services for routine audit of the
  260  return, not beyond the examining agent level, if required.
  261         (f) Purchase, sale, lease, or encumbrance of real property
  262  by the trustee or involvement in zoning, land use,
  263  environmental, or other similar matters.
  264         (g) Legal advice regarding carrying on of decedent’s
  265  business or conducting other commercial activity by the trustee.
  266         (h) Legal advice regarding claims for damage to the
  267  environment or related procedures.
  268         (i) Legal advice regarding homestead status of trust real
  269  property or proceedings involving the status.
  270         (j) Involvement in fiduciary, employee, or attorney
  271  compensation disputes.
  272         (k) Considerations of special valuation of trust assets,
  273  including discounts for blockage, minority interests, lack of
  274  marketability, and environmental liability.
  275         (6) Upon petition of any interested person in a proceeding
  276  to review the compensation paid or to be paid to the attorney
  277  for the trustee, the court may increase or decrease the
  278  compensation for ordinary services of the attorney for the
  279  trustee or award compensation for extraordinary services if the
  280  facts and circumstances of the particular administration
  281  warrant. In determining reasonable compensation, the court shall
  282  consider all of the following factors giving such weight to each
  283  as the court may determine to be appropriate:
  284         (i)Any agreement relating to the attorney’s compensation
  285  and whether written disclosures were made to the trustee in a
  286  timely manner under the circumstances pursuant to paragraph
  287  (1)(b).
  288         Section 3. This act applies to initial estate and initial
  289  trust administrations commenced on or after October 1, 2021.
  290         Section 4. This act shall take effect October 1, 2021.
  291  
  292  ================= T I T L E  A M E N D M E N T ================
  293  And the title is amended as follows:
  294         Delete everything before the enacting clause
  295  and insert:
  296                        A bill to be entitled                      
  297         An act relating to attorney compensation; amending s.
  298         733.6171, F.S.; requiring an attorney representing a
  299         personal representative in an estate administration
  300         who intends to charge a certain fee to make specified
  301         written disclosures; requiring the attorney to obtain
  302         a certain signature; prohibiting an attorney who does
  303         not make such disclosures from being paid for legal
  304         services except in certain circumstances; providing
  305         that the complexity of an estate may be considered
  306         when determining what is an extraordinary service;
  307         requiring a court to consider certain agreements and
  308         written disclosures when determining reasonable
  309         compensation of an attorney upon petition of an
  310         interested person; amending s. 736.1007, F.S.;
  311         requiring an attorney representing a trustee in the
  312         initial administration of a trust who intends to
  313         charge a certain fee to make specified written
  314         disclosures; requiring the attorney to obtain a
  315         certain signature; prohibiting an attorney who does
  316         not make such disclosures from being paid for legal
  317         services except in certain circumstances; providing
  318         that the complexity of a trust may be considered when
  319         determining what is an extraordinary service;
  320         requiring a court to consider certain agreements and
  321         written disclosures when determining reasonable
  322         compensation of an attorney upon petition of an
  323         interested person; providing applicability; providing
  324         an effective date.