AMENDMENTS TO FLORIDA PROBATE CODE AND FLORIDA TRUST CODE, EFFECTIVE JULY 1, 2015

The Florida Probate Code and the Florida Trust Code, which govern the administration of Estates and Trusts in Florida, have recently been amended.  While not comprehensive as to all the changes encompassed thereby, we will highlight in this article the revisions reflected in Senate Bill 872 which are applicable to attorneys’ fees and costs; personal representatives; and the notice of administration. These changes became effective July 1, 2015. To review the legislation in its entirety, see http://flsenate.gov/Session/Bill/2015/0872. 

         The Florida Probate Code and the Florida Trust Code states that an attorney who rendered services to an Estate or Trust may be awarded reasonable compensation from the Estate or Trust for those services.  Currently, the Court may, at its discretion, state from which part of the Estate or Trust those fees and costs shall be paid. The recent amendments provides considerations for a Court in its exercise of whether to assess attorneys’ fees and costs.  These considerations, listed in Sections 733.106(4)(c) and 736.1005(2)(b), Fla. Stat., Sections 2 and 7 of Senate Bill 872, include:

• The relative impact an assessment will have on the estimated value of each person’s part of the Estate or Trust;
• The amount of costs and attorney fees to be assessed against a person’s part of the estate or trust;
• The extent to which a person whose part of the Estate or Trust is to be assessed actively participated in the proceeding, individually or through counsel;
• The potential benefit or harm to a person’s part of the Estate or Trust which is expected from the outcome of the proceeding;
• The relative strength or weakness of the merits of the claims, defenses, or objections, if any, that were asserted by someone whose part of the Estate or Trust is to be assessed;
• Whether the person to be assessed was a prevailing party with regard to one or more claims, defenses, or objections;
• Whether the person whose part of the Estate or Trust is to be assessed unjustly caused an increase in the amount of costs and (applicable to Estates only by virtue of Section 733.106(4)(c)(7)) attorney fees that were incurred by the personal representative, trustee or another interested person in connection with the proceeding; and,
• Any other relevant fact, circumstance, or equity.

By adding the above considerations and by reason of the new languages contained with Sections 733.106(4)(d) and 736.1005(2)(c), Fla. Stat., a finding of “bad faith, wrongdoing, or frivolousness” is no longer necessary for a court to award fees and costs, which will resolve conflicts amongst Florida’s District Courts on this issue.  In addition, if costs are to be paid in certain trusts, all or part of the costs may be assessed against one or more parts of the trust in proportions that the court finds to be just and proper.  See Sections 736.1005(2)(a) and 736.1006(2), Fla. Stat.; Sections 7 and 8 of S.B. 872.

        Currently, individuals seeking to serve as personal representatives must be at least 18 years of age, a resident of Florida unless a family member as described in Section 733.304, Fla. Stat., never been convicted of a felony, and have the mental and physical ability to perform the duties required of them.  The amendments to Sections 733.3101(1) and 733.504, Fla Stat., will require that personal representatives who know that he or she was not qualified to act at the time of appointment resign immediately, or be removed by the Court and have their letters of administration revoked. See Sections 4 and 5 of S.B. 872.  Currently, a personal representative who fails to abide by Section 733.3101, Fla. Stat., is personally liable for attorney’s fees and costs incurred in the proceedings associated with his or her removal.  The amendment extends the liability to a personal representative who does not know, but should have known of the facts that would have required him or her to resign and to file and serve a notice of the reasons for their disqualification.  See Section 733.3101(3), Fla. Stat.

         The amendments to Sections 733.212 and 733.2123, Fla. Stat., remove an objection to the qualifications of the personal representative from the objections which must be listed in the notice of administration, or the formal notice served of the petition for administration before the issuance of letters or upon a person who has waived notice.  See Sections 2 and 3 of S.B. 872.  Moreover, the revisions to Section 733.212(2)(c) and (3), Fla. Stat., authorize an extension of time for filing an objection that challenges the validity of the will, venue, or the jurisdiction of the court to estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. “The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by subsection (3), all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative or 1 year after service of the notice of administration.” See Section 2, Senate Bill 872.

Were you aware that Chapter 744, Florida Guardianship Law was also amended?  See House Bills 5 and 7 for the complete text of the legislation. 

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.