Florida Senate - 2021                       CS for CS for SB 954
       
       
        
       By the Committees on Rules; and Judiciary; and Senator Bean
       
       
       
       
       
       595-04558-21                                           2021954c2
    1                        A bill to be entitled                      
    2         An act relating to attorney compensation; amending s.
    3         733.6171, F.S.; requiring an attorney representing a
    4         personal representative in an estate administration
    5         who intends to charge a certain fee to make specified
    6         written disclosures; requiring the attorney to obtain
    7         a certain signature; prohibiting an attorney who does
    8         not make such disclosures from being paid for legal
    9         services except in certain circumstances; providing
   10         that the complexity of an estate may be considered
   11         when determining what is an extraordinary service;
   12         requiring a court to consider certain agreements and
   13         written disclosures when determining reasonable
   14         compensation of an attorney upon petition of an
   15         interested person; amending s. 736.1007, F.S.;
   16         requiring an attorney representing a trustee in the
   17         initial administration of a trust who intends to
   18         charge a certain fee to make specified written
   19         disclosures; requiring the attorney to obtain a
   20         certain signature; prohibiting an attorney who does
   21         not make such disclosures from being paid for legal
   22         services except in certain circumstances; providing
   23         that the complexity of a trust may be considered when
   24         determining what is an extraordinary service;
   25         requiring a court to consider certain agreements and
   26         written disclosures when determining reasonable
   27         compensation of an attorney upon petition of an
   28         interested person; providing applicability; providing
   29         an effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Section 733.6171, Florida Statutes, is amended
   34  to read:
   35         733.6171 Compensation of attorney for the personal
   36  representative.—
   37         (1) Except as provided in paragraph (2)(d), attorneys for
   38  personal representatives are shall be entitled to reasonable
   39  compensation payable from the estate assets without court order.
   40         (2)(a) The attorney, the personal representative, and
   41  persons bearing the impact of the compensation may agree to
   42  compensation determined in a different manner than provided in
   43  this section. Compensation may also be determined in a different
   44  manner than provided in this section if the manner is disclosed
   45  to the parties bearing the impact of the compensation and if no
   46  objection is made as provided for in the Florida Probate Rules.
   47         (b)An attorney representing a personal representative in
   48  an estate administration who intends to charge a fee based upon
   49  the schedule set forth in subsection (3) shall make the
   50  following disclosures in writing to the personal representative:
   51         1.There is not a mandatory statutory attorney fee for
   52  estate administration.
   53         2.The attorney fee is not required to be based on the size
   54  of the estate, and the presumed reasonable fee provided in
   55  subsection (3) may not be appropriate in all estate
   56  administrations.
   57         3.The fee is subject to negotiation between the personal
   58  representative and the attorney.
   59         4.The selection of the attorney is made at the discretion
   60  of the personal representative, who is not required to select
   61  the attorney who prepared the will.
   62         5.The personal representative shall be entitled to a
   63  summary of ordinary and extraordinary services rendered for the
   64  fees agreed upon at the conclusion of the representation. The
   65  summary shall be provided by counsel and shall consist of the
   66  total hours devoted to the representation or a detailed summary
   67  of the services performed during the representation.
   68         (c)The attorney shall obtain the personal representative’s
   69  timely signature acknowledging the disclosures.
   70         (d)If the attorney does not make the disclosures required
   71  by this section, the attorney may not be paid for legal services
   72  without prior court approval of the fees or the written consent
   73  of all interested parties.
   74         (3) Subject to subsection (2), compensation for ordinary
   75  services of attorneys in a formal estate administration is
   76  presumed to be reasonable if based on the compensable value of
   77  the estate, which is the inventory value of the probate estate
   78  assets and the income earned by the estate during the
   79  administration as provided in the following schedule:
   80         (a) One thousand five hundred dollars for estates having a
   81  value of $40,000 or less.
   82         (b) An additional $750 for estates having a value of more
   83  than $40,000 and not exceeding $70,000.
   84         (c) An additional $750 for estates having a value of more
   85  than $70,000 and not exceeding $100,000.
   86         (d) For estates having a value in excess of $100,000, at
   87  the rate of 3 percent on the next $900,000.
   88         (e) At the rate of 2.5 percent for all above $1 million and
   89  not exceeding $3 million.
   90         (f) At the rate of 2 percent for all above $3 million and
   91  not exceeding $5 million.
   92         (g) At the rate of 1.5 percent for all above $5 million and
   93  not exceeding $10 million.
   94         (h) At the rate of 1 percent for all above $10 million.
   95         (4) Subject to subsection (2), in addition to fees for
   96  ordinary services, the attorney for the personal representative
   97  shall be allowed further reasonable compensation for any
   98  extraordinary service. What is an extraordinary service may vary
   99  depending on many factors, including the size and complexity of
  100  the estate. Extraordinary services may include, but are not
  101  limited to:
  102         (a) Involvement in a will contest, will construction, a
  103  proceeding for determination of beneficiaries, a contested
  104  claim, elective share proceeding, apportionment of estate taxes,
  105  or any adversarial proceeding or litigation by or against the
  106  estate.
  107         (b) Representation of the personal representative in audit
  108  or any proceeding for adjustment, determination, or collection
  109  of any taxes.
  110         (c) Tax advice on postmortem tax planning, including, but
  111  not limited to, disclaimer, renunciation of fiduciary
  112  commission, alternate valuation date, allocation of
  113  administrative expenses between tax returns, the QTIP or reverse
  114  QTIP election, allocation of GST exemption, qualification for
  115  Internal Revenue Code ss. 6166 and 303 privileges, deduction of
  116  last illness expenses, fiscal year planning, distribution
  117  planning, asset basis considerations, handling income or
  118  deductions in respect of a decedent, valuation discounts,
  119  special use and other valuation, handling employee benefit or
  120  retirement proceeds, prompt assessment request, or request for
  121  release of personal liability for payment of tax.
  122         (d) Review of estate tax return and preparation or review
  123  of other tax returns required to be filed by the personal
  124  representative.
  125         (e) Preparation of the estate’s federal estate tax return.
  126  If this return is prepared by the attorney, a fee of one-half of
  127  1 percent up to a value of $10 million and one-fourth of 1
  128  percent on the value in excess of $10 million of the gross
  129  estate as finally determined for federal estate tax purposes, is
  130  presumed to be reasonable compensation for the attorney for this
  131  service. These fees shall include services for routine audit of
  132  the return, not beyond the examining agent level, if required.
  133         (f) Purchase, sale, lease, or encumbrance of real property
  134  by the personal representative or involvement in zoning, land
  135  use, environmental, or other similar matters.
  136         (g) Legal advice regarding carrying on of the decedent’s
  137  business or conducting other commercial activity by the personal
  138  representative.
  139         (h) Legal advice regarding claims for damage to the
  140  environment or related procedures.
  141         (i) Legal advice regarding homestead status of real
  142  property or proceedings involving that status and services
  143  related to protected homestead.
  144         (j) Involvement in fiduciary, employee, or attorney
  145  compensation disputes.
  146         (k) Proceedings involving ancillary administration of
  147  assets not subject to administration in this state.
  148         (5) Upon petition of any interested person, the court may
  149  increase or decrease the compensation for ordinary services of
  150  the attorney or award compensation for extraordinary services if
  151  the facts and circumstances of the particular administration
  152  warrant. In determining reasonable compensation, the court shall
  153  consider all of the following factors, giving weight to each as
  154  it determines to be appropriate:
  155         (a) The promptness, efficiency, and skill with which the
  156  administration was handled by the attorney.
  157         (b) The responsibilities assumed by and the potential
  158  liabilities of the attorney.
  159         (c) The nature and value of the assets that are affected by
  160  the decedent’s death.
  161         (d) The benefits or detriments resulting to the estate or
  162  interested persons from the attorney’s services.
  163         (e) The complexity or simplicity of the administration and
  164  the novelty of issues presented.
  165         (f) The attorney’s participation in tax planning for the
  166  estate and the estate’s beneficiaries and tax return
  167  preparation, review, or approval.
  168         (g) The nature of the probate, nonprobate, and exempt
  169  assets, the expenses of administration, the liabilities of the
  170  decedent, and the compensation paid to other professionals and
  171  fiduciaries.
  172         (h) Any delay in payment of the compensation after the
  173  services were furnished.
  174         (i) Any agreement relating to the attorney’s compensation
  175  and whether written disclosures were made to the personal
  176  representative in a timely manner under the circumstances
  177  pursuant to subsection (2).
  178         (j) Any other relevant factors.
  179         (6) If a separate written agreement regarding compensation
  180  exists between the attorney and the decedent, the attorney shall
  181  furnish a copy to the personal representative prior to
  182  commencement of employment, and, if employed, shall promptly
  183  file and serve a copy on all interested persons. Neither A
  184  separate agreement or nor a provision in the will suggesting or
  185  directing that the personal representative retain a specific
  186  attorney does not will obligate the personal representative to
  187  employ the attorney or obligate the attorney to accept the
  188  representation, but if the attorney who is a party to the
  189  agreement or who drafted the will is employed, the compensation
  190  paid shall not exceed the compensation provided in the agreement
  191  or in the will.
  192         Section 2. Present paragraph (i) of subsection (6) of
  193  section 736.1007, Florida Statutes, is redesignated as paragraph
  194  (j), a new paragraph (i) is added to that subsection, and
  195  subsections (1), (2), (3), and (5) of that section are amended,
  196  to read:
  197         736.1007 Trustee’s attorney fees.—
  198         (1)(a)Except as provided in paragraph (d), if the trustee
  199  of a revocable trust retains an attorney to render legal
  200  services in connection with the initial administration of the
  201  trust, the attorney is entitled to reasonable compensation for
  202  those legal services, payable from the assets of the trust,
  203  subject to s. 736.0802(10), without court order. The trustee and
  204  the attorney may agree to compensation that is determined in a
  205  manner or amount other than the manner or amount provided in
  206  this section. The agreement is not binding on a person who bears
  207  the impact of the compensation unless that person is a party to
  208  or otherwise consents to be bound by the agreement. The
  209  agreement may provide that the trustee is not individually
  210  liable for the attorney fees and costs.
  211         (b)An attorney representing a trustee in the initial
  212  administration of the trust who intends to charge a fee based
  213  upon the schedule set forth in subsection (2) shall make the
  214  following disclosures in writing to the trustee:
  215         1.There is not a mandatory statutory attorney fee for
  216  trust administration.
  217         2.The attorney fee is not required to be based on the size
  218  of the trust, and the presumed reasonable fee provided in
  219  subsection (2) may not be appropriate in all trust
  220  administrations.
  221         3.The fee is subject to negotiation between the trustee
  222  and the attorney.
  223         4.The selection of the attorney is made at the discretion
  224  of the trustee, who is not required to select the attorney who
  225  prepared the trust.
  226         5.The trustee shall be entitled to a summary of ordinary
  227  and extraordinary services rendered for the fees agreed upon at
  228  the conclusion of the representation. The summary shall be
  229  provided by counsel and shall consist of the total hours devoted
  230  to the representation or a detailed summary of the services
  231  performed during the representation.
  232         (c)The attorney shall obtain the trustee’s timely
  233  signature acknowledging the disclosures.
  234         (d)If the attorney does not make the disclosures required
  235  by this section, the attorney may not be paid for legal services
  236  without prior court approval of the fees or the written consent
  237  of the trustee and all qualified beneficiaries.
  238         (2) Unless otherwise agreed and subject to subsection (1),
  239  compensation based on the value of the trust assets immediately
  240  following the settlor’s death and the income earned by the trust
  241  during initial administration at the rate of 75 percent of the
  242  schedule provided in s. 733.6171(3)(a)-(h) is presumed to be
  243  reasonable total compensation for ordinary services of all
  244  attorneys employed generally to advise a trustee concerning the
  245  trustee’s duties in the initial trust administration.
  246         (3) Subject to subsection (1), an attorney who is retained
  247  to render only limited and specifically defined legal services
  248  shall be compensated as provided in the retaining agreement. If
  249  the amount or method of determining compensation is not provided
  250  in the agreement, the attorney is entitled to a reasonable fee,
  251  taking into account the factors set forth in subsection (6).
  252         (5) Subject to subsection (1), in addition to the
  253  attorney’s fees for ordinary services, the attorney for the
  254  trustee shall be allowed further reasonable compensation for any
  255  extraordinary service. What constitutes an extraordinary service
  256  may vary depending on many factors, including the size and
  257  complexity of the trust. Extraordinary services may include, but
  258  are not limited to:
  259         (a) Involvement in a trust contest, trust construction, a
  260  proceeding for determination of beneficiaries, a contested
  261  claim, elective share proceedings, apportionment of estate
  262  taxes, or other adversary proceedings or litigation by or
  263  against the trust.
  264         (b) Representation of the trustee in an audit or any
  265  proceeding for adjustment, determination, or collection of any
  266  taxes.
  267         (c) Tax advice on postmortem tax planning, including, but
  268  not limited to, disclaimer, renunciation of fiduciary
  269  commission, alternate valuation date, allocation of
  270  administrative expenses between tax returns, the QTIP or reverse
  271  QTIP election, allocation of GST exemption, qualification for
  272  Internal Revenue Code ss. 303 and 6166 privileges, deduction of
  273  last illness expenses, distribution planning, asset basis
  274  considerations, throwback rules, handling income or deductions
  275  in respect of a decedent, valuation discounts, special use and
  276  other valuation, handling employee benefit or retirement
  277  proceeds, prompt assessment request, or request for release from
  278  personal liability for payment of tax.
  279         (d) Review of an estate tax return and preparation or
  280  review of other tax returns required to be filed by the trustee.
  281         (e) Preparation of decedent’s federal estate tax return. If
  282  this return is prepared by the attorney, a fee of one-half of 1
  283  percent up to a value of $10 million and one-fourth of 1 percent
  284  on the value in excess of $10 million, of the gross estate as
  285  finally determined for federal estate tax purposes, is presumed
  286  to be reasonable compensation for the attorney for this service.
  287  These fees shall include services for routine audit of the
  288  return, not beyond the examining agent level, if required.
  289         (f) Purchase, sale, lease, or encumbrance of real property
  290  by the trustee or involvement in zoning, land use,
  291  environmental, or other similar matters.
  292         (g) Legal advice regarding carrying on of decedent’s
  293  business or conducting other commercial activity by the trustee.
  294         (h) Legal advice regarding claims for damage to the
  295  environment or related procedures.
  296         (i) Legal advice regarding homestead status of trust real
  297  property or proceedings involving the status.
  298         (j) Involvement in fiduciary, employee, or attorney
  299  compensation disputes.
  300         (k) Considerations of special valuation of trust assets,
  301  including discounts for blockage, minority interests, lack of
  302  marketability, and environmental liability.
  303         (6) Upon petition of any interested person in a proceeding
  304  to review the compensation paid or to be paid to the attorney
  305  for the trustee, the court may increase or decrease the
  306  compensation for ordinary services of the attorney for the
  307  trustee or award compensation for extraordinary services if the
  308  facts and circumstances of the particular administration
  309  warrant. In determining reasonable compensation, the court shall
  310  consider all of the following factors giving such weight to each
  311  as the court may determine to be appropriate:
  312         (i)Any agreement relating to the attorney’s compensation
  313  and whether written disclosures were made to the trustee in a
  314  timely manner under the circumstances pursuant to paragraph
  315  (1)(b).
  316         Section 3. This act applies to initial estate and initial
  317  trust administrations commenced on or after October 1, 2021.
  318         Section 4. This act shall take effect October 1, 2021.