How Expensive Is Trust Litigation in Florida?

How expensive is trust litigation? The short answer

How expensive is trust litigation? It depends on the facts of each dispute, and no single price fits every case. The main cost drivers are the number of parties, the amount of document exchange and testimony, whether the matter settles early, and whether a court hearing or trial is needed. This page explains those categories instead of giving numbers, because it does not state hourly rates, retainers or price ranges. Each driver is explained below so you can see where the money goes.

Does litigation cost money?

Yes. Trust litigation costs money at several levels. The largest line is usually attorney time, followed by court filing and service costs. Discovery adds more. Discovery includes requests for documents and depositions, which are sworn questions answered outside the courtroom. A dispute may also need outside expert witnesses, such as appraisers or forensic accountants, who help the court understand property values or where money went.

It helps to split these costs into two groups. The first group is what you pay your own lawyer and vendors. The second group is what a court may later shift to another person. Those are different questions, and the answer to each turns on the case.

Trust disputes follow a general path. A petition is filed, the other side responds, discovery follows, and then a hearing or trial may come next. Our trust litigation attorney page explains how that process works from start to finish.

Why trust disputes cost what they do

Trust disputes often cost more than people expect, because the work grows as the facts come out. Asset tracing means following money and property from the trust to where they went. Accountings to beneficiaries add document review. A challenge to a trustee’s decision can require the court to examine what the trustee did and why.

A dispute with several beneficiaries takes more time than a single-issue challenge. Each party may need its own discovery, and each may raise separate arguments. Contested documents, such as a disputed amendment, add another layer of proof.

Time is a cost too. The National Center for State Courts reports that civil litigation can involve high costs, procedural complexity and delay. It also reports that mediation and arbitration may resolve disputes more quickly and cost-effectively than traditional litigation. Early talks can narrow the issues and shorten the matter. Settlement is never guaranteed, so an early offer should be weighed carefully before you accept or reject it.

Who pays legal fees in a trust dispute?

Florida courts can order attorney fees and costs paid in trust cases. Under Fla. Stat. § 736.1004, in actions for breach of fiduciary duty or challenges to a trustee’s powers, the court shall award taxable costs as in chancery actions, including attorney fees. The court may direct payment from a party’s interest in the trust, or enter a judgment that may be satisfied from other property of that party.

The starting point in Florida is different. Under the American Rule, as the Florida Supreme Court stated in Price v. Tyler, each party generally bears its own attorneys’ fees unless a contract or statute provides otherwise. So fee shifting is the exception, and it comes from a statute or contract.

Under Fla. Stat. § 736.1005, in its discretion, a court may consider several factors before assessing fees against a person’s part of the trust. Those factors include that person’s active participation, the expected benefit or detriment from the outcome, and the strength of the merits. The court may assess fees without finding bad faith, wrongdoing or frivolousness.

Under Fla. Stat. § 57.105, upon the court’s initiative or a party’s motion, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney, when the court finds that the losing party or its attorney knew or should have known that a claim or defense was not supported by the material facts necessary to establish it or would not be supported by the application of then-existing law to those material facts. The statute also limits monetary sanctions: they may not be awarded on the existing-law ground when the claim was presented as a good faith argument for extending, modifying or reversing existing law, and they may not be awarded on that ground against a represented party. No monetary sanction may be awarded under the existing-law ground if the claim or defense was initially presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, with a reasonable expectation of success. The motion must be served first and cannot be filed unless the challenged paper is not withdrawn or corrected within 21 days.

How a fee request turns out depends on the court and the record. This page makes no prediction about any fee award.

Quick answers

How fiduciary compensation fits into the picture

A personal representative (often called an executor) may be compensated under Florida law, and the statute presumes a percentage commission reasonable, although the will may set compensation criteria and the personal representative may renounce compensation. Under Fla. Stat. § 733.617, a personal representative is entitled to a commission from estate assets for ordinary services. That commission is based on the compensable value of the estate. On petition of an interested person, the court may increase or decrease that compensation.

A trustee’s pay follows a different path. Under Fla. Stat. § 736.0708, if the trust does not specify the trustee’s compensation, the trustee is entitled to compensation that is reasonable under the circumstances. Under Fla. Stat. § 736.0206, the trustee and any person the trustee employs carry the burden to prove that the employment and the compensation are reasonable.

Trust Counsel’s attorneys can serve individually as trustee or personal representative. The firm advises and represents trustees, personal representatives and beneficiaries. Trust Counsel, PL does not itself serve as a fiduciary.

If you need to know who may serve, read who can act as a personal representative in Florida. To learn what the role carries, see what rights a personal representative of an estate has. For the fee question, see what a typical executor fee in Florida involves.

Talk through your situation before the costs grow

Many people first search this topic while a parent’s or relative’s estate is still open. A family fight over a trust they did not write may already be underway. You may be a beneficiary who received a thin accounting, an heir who wants straight answers, or a fiduciary who now faces a challenge. In that spot, the cost question often comes before the legal one.

Leslie V. Marenco is the responsible lawyer for this page. Trust Counsel, PL has its only office in Coral Gables, Florida.

If you’re asking how expensive trust litigation could be for your family, a free, confidential first consultation is available, with no obligation to continue. Call (305) 707-7126 or schedule online.