What Is a Reasonable Trustee Fee in Florida?

Responsible lawyer: Leslie V. Marenco, Trust Counsel, PL, Coral Gables, Florida.

If you’re asking what is a reasonable trustee fee in Florida, the short answer is this: the trust document sets the pay first, and Florida law fills the gap when it doesn’t. When the trust is silent on pay, a trustee is entitled to reasonable compensation for the circumstances. This page explains how that test works, how personal representative pay differs, and what a beneficiary can do when a bill looks wrong.

The Short Answer: Start With the Trust Document

Trust terms come first. When the trust sets the trustee’s pay, the trustee is generally paid as the trust specifies. When it doesn’t, Florida law steps in.

Florida’s trust code says that when a trust doesn’t specify compensation, a trustee “is entitled to compensation that is reasonable under the circumstances” (Fla. Stat. § 736.0708). The key word is reasonable. The statute doesn’t set a flat rate or one number for every trust.

The trust terms also control in most areas. The trust code says a trust’s terms prevail over its default rules, except for listed exceptions (Fla. Stat. § 736.0105). That makes drafting matter. A trust that names a fee, a percentage or a method of pay will usually be followed, but the court may adjust a trustee’s compensation specified in the terms of the trust that is unreasonably low or high.

How Florida Statute 736.0708 Defines Reasonable Compensation

Section 736.0708 sets a reasonableness standard for trusts that do not specify the trustee’s compensation, not a fee schedule; where the terms specify pay, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if the trustee’s duties are substantially different from those contemplated when the trust was created, or if the specified compensation would be unreasonably low or high. It tells a court what question to ask. It tells a court what question to ask.

When a trust sets the pay, the trustee is entitled to be paid as specified. The court may allow more or less if the trustee’s duties are substantially different from what the trust contemplated, or if the specified pay is unreasonably low or high (Fla. Stat. § 736.0708). Duties can grow over time. A simple trust at signing can become hard to run.

A trustee who renders other services for the trust shall also be allowed reasonable pay for those services, in addition to trustee pay.

The statute also limits one situation. For appointments under a trust agreement executed by a Florida resident on or after October 1, 2020, or amended on or after that date when the amendment nominates the drafting attorney or a related person, Fla. Stat. § 736.0708(4)(a) bars compensation for an attorney serving as trustee, or a person related to that attorney, if the attorney prepared or supervised the trust instrument that made the appointment. The bar does not apply if the attorney or the person appointed is related to the settlor, or if the attorney gives the settlor the required disclosures before the trust instrument is executed, including this statement: “Unless specifically disqualified by the terms of the trust instrument, any person, regardless of state of residence and including a family member, friend, or corporate fiduciary, is eligible to serve as a trustee.” The settlor must also sign a separate written statement acknowledging those disclosures. Fla. Stat. § 736.0708 reads: “Unless specifically disqualified by the terms of the trust instrument, any person, regardless of state of residence and including a family member, friend, or corporate fiduciary, is eligible to serve as a trustee.”

Factors Courts and Advisers Weigh in Deciding Reasonableness

Reasonableness depends on the trust’s facts and the work the trustee actually does. A fee that looks high for a simple account can be fair for a complicated one. Whether a particular fee is reasonable depends on the facts.

Circumstances that usually bear on the question include:

• Size and complexity. Real estate, a closely held business or out-of-state property takes more time than a single bank account.
• Work performed. Recordkeeping, tax filings, asset sales and communication with beneficiaries all take time.
• Skill the work needs. A trustee who has special skills or expertise, or who is named trustee in reliance on a representation of special skills or expertise, must use those skills (Fla. Stat. § 736.0806).
• Routine or contested administration. A smooth trust differs from one tied up in court.

Clear records make a fee easier to review, because the accounting shows what was done and when.

Personal Representative Compensation Under Florida Law

A personal representative (often called an executor) is paid under the probate code, not the trust code. Florida law addresses personal representative compensation in Fla. Stat. § 733.617. This is a separate question from trustee pay.

Under that statute, a personal representative gets a commission for ordinary services, payable from estate assets without a court order. The commission is based on the compensable value of the estate. That value is the inventory value of probate assets plus income earned during administration. For formal administration, the statute presumes that a commission computed this way is reasonable.

Extraordinary services can earn more. The statute lists examples such as selling property and carrying on the decedent’s business. If the will sets specific criteria for pay, the personal representative is paid under those terms, subject to the statute’s renunciation rules.

Any interested person can petition the court. The court may increase or decrease compensation for ordinary services if the facts warrant. It considers the promptness, efficiency and skill with which the estate was handled.

Trust Counsel’s attorneys can serve individually as trustee or personal representative, and the firm advises and represents trustees, personal representatives and beneficiaries.

Individual, Professional, Corporate and Attorney-Trustees Compared

How a trustee gets paid depends on who the trustee is and what the trust says.

Family and individual trustees. The statute’s disclosure language says any person, including an attorney, who serves as trustee is entitled to reasonable compensation for serving (Fla. Stat. § 736.0708).

Professional and corporate trustees. When the trust addresses their pay, the trust terms govern the charges, but the court may allow more or less compensation if the trustee’s duties are substantially different from those contemplated when the trust was created, or if the compensation specified by the trust would be unreasonably low or high. A court can still review the reasonableness of any compensation paid to a trustee (Fla. Stat. § 736.0206).

Attorney-trustees. An attorney serving as trustee raises two separate questions. Trustee pay is one. Legal work for the trust is the other. An attorney who has rendered services to a trust may apply to the court for reasonable compensation from the trust (Fla. Stat. § 736.1005).

Expenses. Reimbursement is not pay. A trustee may be reimbursed from trust property, with interest as appropriate, for reasonable expenses properly incurred in administering the trust (Fla. Stat. § 736.0709).

Can Beneficiaries Challenge Trustee Fees, and Can a Trustee Lose Compensation?

Yes. A beneficiary can ask a Florida court to review trustee fees. The trustee and anyone the trustee employed carry the burden of proving that the employment and the pay are reasonable. A person who received excessive compensation may be ordered to make refunds (Fla. Stat. § 736.0206).

On reasonable request, a qualified beneficiary can get relevant information about the trust’s assets, liabilities and administration (Fla. Stat. § 736.0813).

For an irrevocable trust, a trustee owes each qualified beneficiary an accounting annually and on termination of the trust or change of the trustee, but under Fla. Stat. § 736.0813(2) a qualified beneficiary may waive the trustee’s duty to account under paragraph (1)(d). If a family trust company is trustee, the trust terms may instead permit accounting only at termination, upon removal, resignation, or other event resulting in a trustee ceasing to serve as a trustee, or upon demand of a qualified beneficiary or the representative of a qualified beneficiary. The accounting must show compensation paid to the trustee and the trustee’s agents (Fla. Stat. § 736.08135). That is where trustee pay shows up.

Key Takeaways

Trust terms come first. If the trust is silent, Florida law pays a trustee reasonable compensation for the circumstances. Beneficiaries can ask a court to review fees. Personal representative pay is a separate statutory question.

• Start with the trust terms, then apply the reasonableness standard.
• The answer turns on the trust’s size, complexity and the work performed.
• Personal representative pay follows the probate code and any will terms.
• Qualified beneficiaries of an irrevocable trust can request relevant information about the trust and review accountings.

For the wider context of trust disputes, see the firm’s trust litigation attorney page.

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