Who Pays Attorney Fees in a Florida Trust Lawsuit?

Who pays attorney fees in a Florida trust lawsuit? In most cases, each side pays its own. A judge can move those fees to the other side only when a statute or the trust document allows it. This page explains each route, the factors a court weighs, and where the rules differ for trustees and beneficiaries. It is general information about Florida law.

The Starting Rule: Each Side Usually Pays Its Own Attorney Fees

Each side usually pays its own attorney fees in a Florida trust lawsuit. Florida follows what lawyers call the American Rule. Under Florida law, each party generally bears its own attorneys’ fees unless a contract or statute provides otherwise.

Two questions sit side by side. The first is who wins the dispute. The second is who pays the lawyers. Winning the underlying fight doesn’t, by itself, move the fee bill to the other side.

A statute can shift fees, such as the trust and probate code sections covered below. And a sanctions statute can shift fees for claims or defenses that lack support. Each route has its own test, so the right one turns on which proceeding is before the court.

How Florida Trust Code Section 736.1005 Allocates Fees

Section 736.1005 lets a court award reasonable compensation from the trust to an attorney who has rendered services to it. The attorney applies to the court. After notice to the trustee and to beneficiaries entitled to an accounting, the court enters an order on the fee application (§ 736.1005).

The court also decides who bears the cost. It may assess all or part of the fees against one or more persons’ part of the trust, in proportions the court finds just and proper. The court can weigh the impact on each person’s share, how actively each person took part, and the potential benefit or detriment from the outcome. It can also consider the strength of each side’s merits and who prevailed. A finding of bad faith isn’t required (§ 736.1005).

A separate rule covers breach of fiduciary duty claims and challenges to a trustee’s powers. In those actions, the court “shall award taxable costs as in chancery actions, including attorney fees” (§ 736.1004). The court may direct payment from a party’s interest in the trust, or enter a judgment payable from that party’s other property, or both.

Tie the request to the court record so the judge can see what the fees paid for.

Fee Rules in Probate and Estate Disputes Under Section 733.106

Section 733.106 sets the fee rules for probate proceedings. Probate is the court process for administering a deceased person’s estate. A personal representative (often called an executor) handles that process. “In all probate proceedings, costs may be awarded as in chancery actions” (§ 733.106). Any attorney who has rendered services to an estate may also receive reasonable compensation from the estate.

Many families have both a will and a trust. When the court directs an assessment against a person’s part of the estate and that part is insufficient to fully pay it, the court may direct payment from the person’s part of a trust, if any, if a pour-over will is involved and the matter is interrelated with the trust (§ 733.106). Check which case is open before you assume a rule.

When the Trust Document Decides Who Pays

A trust document can address fees and contests, but Florida law limits some of those clauses. A court reads the exact wording, so small differences in the language can matter.

Florida makes one limit clear. A provision that penalizes an interested person for contesting the trust or starting other proceedings about trust assets is unenforceable. This applies to trusts created on or after October 1, 1993. For a revocable trust, the trust counts as created when the right of revocation ends (§ 736.1108).

A fee clause doesn’t sit outside the statutes. Whether a particular clause is enforced depends on the facts of each matter.

Trustee Defense Costs, Reimbursement, and Personal Exposure

A trustee can be reimbursed from trust property for reasonable expenses that were properly incurred in administering the trust, with interest as appropriate (§ 736.0709). Those expenses must also be reasonable in relation to the trust property, the trust’s purposes, and the trustee’s skills (§ 736.0805).

The statute lists involvement in a trust contest and other adversary proceedings as examples of extraordinary services that the trustee’s attorney may perform in the initial administration of a revocable trust (§ 736.1007). Any interested person may petition the court to review the compensation paid or to be paid to the attorney for the trustee, and the court may increase or decrease the compensation for ordinary services or award compensation for extraordinary services if the facts and circumstances warrant (§ 736.1007).

The other side of that picture is personal exposure. As a remedy for a breach of trust, the court may also reduce or deny the trustee’s compensation (§ 736.1001).

Keep a clear record of why each litigation expense was incurred and what it cost.

Sanctions for Unsupported Claims and Defenses Under Section 57.105

Section 57.105 requires a court to award a reasonable fee, including prejudgment interest, to the prevailing party for claims or defenses that lack support. The court must find that the losing party or its attorney knew or should have known the claim lacked support in the material facts, or would not be supported by existing law. The fee is paid in equal amounts by the losing party and the losing party’s attorney (§ 57.105).

The statute sets a procedure. A sanctions motion must be served first. It cannot be filed unless the challenged paper is not withdrawn or corrected within 21 days after service (§ 57.105). That window gives the other side a chance to fix the problem.

The statute also protects good-faith arguments. Monetary sanctions cannot be awarded on the existing-law ground if the claim was presented as a good-faith argument to extend, modify, or reverse existing law, with a reasonable expectation of success.

Section 57.105 looks at how a party presented its claims and defenses during the case, not at the trust terms.

Talk With Trust Counsel About Your Trust Dispute

A fee question often starts with a bill or a demand letter. A trustee may have charged the trust for defending a challenge that a beneficiary believes was improper. A beneficiary may instead face a demand to pay the other side’s fees. Each situation depends on its own facts.

Trust Counsel, PL is in Coral Gables, Florida. The firm advises and represents trustees, personal representatives and beneficiaries. We serve clients in Florida, including Doral, Kendall, Pinecrest, Key Biscayne, Aventura, Fort Lauderdale, Boca Raton and West Palm Beach. The first consultation is free, confidential, and comes with no obligation to continue.

To discuss your dispute, call (305) 707-7126 or schedule online.

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