The Florida Senate

733.6171  Compensation of attorney for the personal representative.--

(1)  Attorneys for personal representatives shall be entitled to reasonable compensation for their services payable from the assets of the estate without court order.

(2)  The attorney, the personal representative, and persons bearing the impact of the compensation may agree to compensation determined in a different manner than provided in this section. Compensation may also be determined in a different manner than provided in this section if the manner is disclosed to the parties bearing the impact of the compensation in the petition for discharge or final accounting and there is no objection filed pursuant to s. 733.901.

(3)  Compensation provided in the following schedule for ordinary services based upon the inventory value of the estate assets and the income earned by the estate during the administration is presumed to be reasonable compensation for attorneys in formal estate administration:

(a)  One thousand five hundred dollars for estates having a value of $40,000 or less.

(b)  An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.

(c)  An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.

(d)  For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.

(e)  At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.

(f)  At the rate of 2 percent for all above $3 million and not exceeding $5 million.

(g)  At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.

(h)  At the rate of 1 percent for all above $10 million.

(4)  In addition to the attorney's fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service. What is an extraordinary service may vary depending on many factors, including the size of the estate. Extraordinary services may include, but are not limited to:

(a)  Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any other adversarial proceeding or litigation by or against the estate.

(b)  Representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.

(c)  Tax advice on postmortem tax planning, including, but not limited to, disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, the QTIP or reverse QTIP election, allocation of GST exemption, qualification for Internal Revenue Code ss. 6166 and 303 privileges, deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts, special use and other valuation, handling employee benefit or retirement proceeds, prompt assessment request, or request for release of personal liability for payment of tax.

(d)  Review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.

(e)  Preparation of the estate's federal estate tax return. If this return is prepared by the attorney, a fee of one-half of 1 percent up to a value of $10 million and one-fourth of 1 percent on the value in excess of $10 million of the gross estate as finally determined for federal estate tax purposes, is presumed to be reasonable compensation for the attorney for this service. These fees shall include services for routine audit of the return, not beyond the examining agent level, if required.

(f)  Purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.

(g)  Legal advice regarding carrying on of decedent's business or conducting other commercial activity by the personal representative.

(h)  Legal advice regarding claims for damage to the environment or related procedures.

(i)  Legal advice regarding homestead status of real property or proceedings involving that status.

(j)  Involvement in fiduciary, employee, or attorney compensation disputes.

(k)  Proceedings involving ancillary administration of assets not subject to administration in this state.

(5)  Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the attorney or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors giving such weight to each as it may determine to be appropriate:

(a)  The promptness, efficiency, and skill with which the administration was handled by the attorney.

(b)  The responsibilities assumed by, and potential liabilities of, the attorney.

(c)  The nature and value of the assets that are affected by the decedent's death.

(d)  The benefits or detriments resulting to the estate or its beneficiaries from the attorney's services.

(e)  The complexity or simplicity of the administration and the novelty of issues presented.

(f)  The attorney's participation in tax planning for the estate and the estate's beneficiaries and tax return preparation or review and approval.

(g)  The nature of the probate, nonprobate, and exempt assets, the expenses of administration and liabilities of the decedent, and the compensation paid to other professionals and fiduciaries.

(h)  Any delay in payment of the compensation after the services were furnished.

(i)  Any other relevant factors.

(6)  The court may determine reasonable attorney's compensation without receiving expert testimony. Any party may offer expert testimony after notice to interested persons. If expert testimony is offered, an expert witness fee may be awarded by the court and paid from the assets of the estate. The court may, in its discretion, direct from what part of the estate it shall be paid.

(7)  If a separate written agreement regarding compensation exists between the attorney and the decedent, the attorney shall furnish a copy to the personal representative prior to commencement of employment, and, if employed, shall promptly file and serve a copy on all interested persons. Neither a separate agreement nor a provision in the will suggesting or directing the personal representative to retain a specific attorney will obligate the personal representative to employ the attorney or obligate the attorney to accept the representation, but if the attorney who is a party to the agreement or who drafted the will is employed, the compensation paid shall not exceed the compensation provided in the agreement.

(8)  Court proceedings to determine compensation, if required, are a part of the estate administration process, and the costs, including fees for the personal representative's attorney, shall be determined by the court and paid from the assets of the estate unless the court finds the request for attorney's fees to be substantially unreasonable. The court shall direct from which part of the estate they shall be paid.

(9)  The amount and manner of determining compensation for attorneys for personal representatives must be disclosed in the final accounting, unless the disclosure is waived in writing signed by the parties bearing the impact of the compensation and filed with the court. No such waiver shall be valid unless it contains language declaring that the waiving party has actual knowledge of the amount and manner of determining such compensation and, in addition, expressly acknowledging either one of the following two elements:

(a)  That the waiving party has agreed to the amount and manner of determining such compensation and is waiving any objections to payment of such compensation; or

(b)  That the waiving party has the right under subsection (5) to petition the court to decrease such compensation and is waiving that right.

The requirements of this subsection shall not apply if the full amount of such compensation has previously been determined by order of the court after notice. A waiver of the final accounting shall not be effective if it does not meet the requirements of this subsection.

(10)  This section shall apply to estates in which an order of discharge has not been entered prior to its effective date but not to those estates in which attorney's fees have previously been determined by order of court after notice.

History.--s. 4, ch. 93-257; s. 2, ch. 95-401.