David M. Garten

PROBATE CORNER
By: David M. Garten, Esq.

ARTICLE: Attorney's Fees For Rendering Services To An Estate

Sec. 733.106(3) provides: "Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate." This statute is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in effectuating the testamentary intention set forth in the will, that prevent the appointment of a personal representative, or that obtain the removal of a personal representative.

I. ATTORNEY'S FEES ALLOWED:

When is an attorney entitled to an award of attorney's fees pursuant to §733.106(3)?

• In re Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983). A beneficiary whose devise was being contested by the personal representative on the basis of undue influence was entitled to an award of attorney's fees when the personal representative voluntarily dismissed his petition. In Lewis, Judge Tom Johnson denied James G. Pressly, Jr.'s petition for attorney's fees. The appellate court, in reversing Judge Johnson, reasoned that by successfully resisting the personal representative's attack upon the will, the testamentary intention set forth in the will was effectuated.

• Duncombe v. Adderly, 2008Fla. App. LEXIS 15405 (Fla. 4th DCA 10/8/08). A beneficiary who prevents the appointment of a designated personal representative is entitled to an award of attorney's fees. In Duncombe, Judge Karen Martin denied Brian O'Connell's petition for attorney's fees because "there has been no increase in value to the estate, nor has it been demonstrated that the petitioner carried out the intent of the testator." The appellate court concluded that "the statute authorizing fees should not be read so narrowly" and reversed. The court reasoned that preventing the appointment of a personal representative named in the will is a basis for the award of attorney's fees, as is obtaining the removal of a representative.

• Menz v. Estate of Menz, 381 So.2d 375 (Fla. 1st DCA 1980). In Menz, the surviving spouse was entitled to recover attorney's fees necessitated by the personal representative's failure to satisfy his duty to file a petition to determine the amount of the elective share after a proper election had been made because the attorney's efforts on the widow's behalf resulted in a change in the distribution of the will.

• Johnson v. Burleson, 61 So.2d 170 (Fla. 1952). In Johnson, the surviving spouse was entitled to recover attorney's fees where the legal services were necessary to require a personal representative to carry out the provisions of a will and give the surviving spouse the income as directed in the will. The court reasoned that in order to carry out the purpose and intention expressed in the will, the services of an attorney were necessary to aid the Judge in arriving at the correct conclusions and issuing proper orders to carry out this intention; therefore, the attorney's services were of value to the estate.

• In re Estate of Griffis, 366 So.2d 80 (Fla. 4th DCA 1978). In Griffis, a beneficiary who successfully argued that decedent's destruction of two later codicils revived the provisions of the first codicil was entitled to recover his attorney's fees because the ultimate will was determined and the estate was benefitted because the beneficiaries whom the testator intended are the ones who receive their legacies and bequests. The court reasoned that it is not the fact that the beneficiary who contested the probate was successful, but that by that contest the final will of the decedent was established and his estate property divided and distributed. 

• Baumer v. Howard, 542 So.2d 400 (Fla. 1st DCA 1989). In Baumer, a beneficiary was entitled to recover attorney's fees by establishing that the widow unlawfully and intentionally killed the decedent because the interest of the decedent in the entireties property passed to his estate instead of to the surviving spouse. Additionally, the attorneys benefited the estate by ensuring that the estate property was divided and distributed according to the decedent's intent. 

• Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988). A beneficiary may recover attorney's fees for those services which resulted in tax savings to the estate.

II. ATTORNEY'S FEES NOT ALLOWED

When is an attorney not entitled to an award of attorney's fees pursuant to §733.106(3)? 

• In re Estate of Hand, 475 So.2d 1337 (Fla. 3d DCA 1985); Onofrio v. Johnston & Sasser, P.A., 782 So.2d 1019 (Fla. 5th DCA 2001). A proponent of a will who is found to have procured it through undue influence is not entitled to be awarded attorney's fees from the decedent's estate because the services rendered by the attorney are of no benefit to the estate. However, the proponent's attorney would be entitled to recover his fees for the services that benefit the estate, such as publishing notice to creditors, protecting assets, and considering and dealing with tax issues. 
   
• In re Estate of Simon, 549 So.2d 210 (Fla. 3d DCA 1989); Dew v. Nerreter, 664 So. 2d 1179 (Fla. 5th DCA 1995). Attorney's fees will not be awarded if a court determines that the attorney's actions were a detriment rather than a benefit to the estate, i.e., if the services tend to break down, subtract from, or dissipate the estate. The detriment may result from prolonged litigation and delay in administration, coupled with no of a net enhancement in value or in increase in the assets of the estate. 

 

• Samuels v. Estate of Ahern, 436 So.2d 1096 (Fla. 4th DCA 1983). A party is not entitled to recover attorney's fees from an estate for litigating entitlement to a bank account jointly held with the decedent because the bank account was not a probate asset and, thus, not a part of the estate. Because the account did not pass under the will, the decedent's testamentary intention, which is to be as gleaned from the express terms of the will, was not involved. 

• Franklin v. Stettin, 579 So.2d 245 (Fla. 3d DCA 1991). Services rendered by an attorney that are duplicative of the curator's efforts are not beneficial to the estate. 

• In re Estate of Freedman, 340 So.2d 1275 (Fla. 3d DCA 1977). In Freedman, the decedent's daughter petitioned to recover her attorney's fees from her father's estate for pursuing an independent action to impress a constructive trust on legacies bequeathed by deceased to her two half-sisters. The appellate court, in affirming the denial of the petition, reasoned: "In order to be entitled to a reasonable attorney's fee, the estate must have been benefited by the services of counsel. [citation omitted]. In the case at bar the distribution was not changed, but rather a constructive trust was placed on the distributive shares of the legatees by means of a separate action in the civil division of the circuit court. We conclude that the estate was not enhanced thereby and the probate judge was eminently correct in denying Ms. Freedman an award of a reasonable attorney's fee." 

• Harding v. Rosoff, 951 So.2d 912 (Fla. 4th DCA 2007). In Harding, the decedent executed a will creating a testamentary trust to benefit his sister, Teresa. The decedent granted Teresa the power of appointment to dispose of the assets in the trust in her will. After Teresa's death, Harding successfully challenged Teresa's exercise of the power of appointment in her will. The appellate court, in affirming the probate court?s denial of Harding's request for attorney's fees, reasoned that the litigation thwarted the testator's intent as expressed in his will. 

• Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988. In Tillman, the decedent and his widow entered into an antenuptial agreement in which they waived their right to take any interest, including the elective share, in their respective estates. The decedent's will specifically referenced the antenuptial agreement. The widow successfully challenged the validity of the antenuptial agreement and received her elective share. The appellate court, in denying the widow's request for attorney's fees, reasoned that the litigation clearly thwarted the decedent's intention as expressed in his will; the decedent clearly intended the antenuptial agreement to control and for his widow to receive only a small interest in his estate.