The 2023 Florida Statutes (including Special Session C)

Title XLII
ESTATES AND TRUSTS

Chapter 733
PROBATE CODE: ADMINISTRATION OF ESTATES

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F.S. 733.6171

733.6171 Compensation of attorney for the personal representative.—

(1) Except as provided in paragraph (2)(d), attorneys for personal representatives are entitled to reasonable compensation payable from the estate assets without court order.

(2)(a) The attorney, the personal representative, and persons bearing the impact of the compensation may agree to compensation determined in a different manner than provided in this section. Compensation may also be determined in a different manner than provided in this section if the manner is disclosed to the parties bearing the impact of the compensation and if no objection is made as provided for in the Florida Probate Rules.

(b) An attorney representing a personal representative in an estate administration who intends to charge a fee based upon the schedule set forth in subsection (3) shall make the following disclosures in writing to the personal representative:

1. There is not a mandatory statutory attorney fee for estate administration.

2. The attorney fee is not required to be based on the size of the estate, and the presumed reasonable fee provided in subsection (3) may not be appropriate in all estate administrations.

3. The fee is subject to negotiation between the personal representative and the attorney.

4. The selection of the attorney is made at the discretion of the personal representative, who is not required to select the attorney who prepared the will.

5. The personal representative shall be entitled to a summary of ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation. The summary shall be provided by counsel and shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation.

(d) If the attorney does not make the disclosures required by this section, the attorney may not be paid for legal services without prior court approval of the fees or the written consent of all interested parties.

(3) Subject to subsection (2), compensation for ordinary services of attorneys in a formal estate administration is presumed to be reasonable if based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during the administration as provided in the following schedule:

(a) One thousand five hundred dollars for estates having a value of $40,000 or less.

(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.

(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.

(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.

(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.

(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.

(h) At the rate of 1 percent for all above $10 million.

(4) Subject to subsection (2), in addition to fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service. What is an extraordinary service may vary depending on many factors, including the size and complexity of the estate. Extraordinary services may include, but are not limited to:

(a) Involvement in a will contest, will construction, a proceeding for determination of beneficiaries, a contested claim, elective share proceeding, apportionment of estate taxes, or any adversarial proceeding or litigation by or against the estate.

(b) Representation of the personal representative in audit or any proceeding for adjustment, determination, or collection of any taxes.

(c) Tax advice on postmortem tax planning, including, but not limited to, disclaimer, renunciation of fiduciary commission, alternate valuation date, allocation of administrative expenses between tax returns, the QTIP or reverse QTIP election, allocation of GST exemption, qualification for Internal Revenue Code ss. 6166 and 303 privileges, deduction of last illness expenses, fiscal year planning, distribution planning, asset basis considerations, handling income or deductions in respect of a decedent, valuation discounts, special use and other valuation, handling employee benefit or retirement proceeds, prompt assessment request, or request for release of personal liability for payment of tax.

(d) Review of estate tax return and preparation or review of other tax returns required to be filed by the personal representative.

(e) Preparation of the estate’s federal estate tax return. If this return is prepared by the attorney, a fee of one-half of 1 percent up to a value of $10 million and one-fourth of 1 percent on the value in excess of $10 million of the gross estate as finally determined for federal estate tax purposes, is presumed to be reasonable compensation for the attorney for this service. These fees shall include services for routine audit of the return, not beyond the examining agent level, if required.

(f) Purchase, sale, lease, or encumbrance of real property by the personal representative or involvement in zoning, land use, environmental, or other similar matters.

(g) Legal advice regarding carrying on of the decedent’s business or conducting other commercial activity by the personal representative.

(h) Legal advice regarding claims for damage to the environment or related procedures.

(i) Legal advice regarding homestead status of real property or proceedings involving that status and services related to protected homestead.

(j) Involvement in fiduciary, employee, or attorney compensation disputes.

(k) Proceedings involving ancillary administration of assets not subject to administration in this state.

(5) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the attorney or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the attorney.

(b) The responsibilities assumed by and the potential liabilities of the attorney.

(d) The benefits or detriments resulting to the estate or interested persons from the attorney’s services.

(e) The complexity or simplicity of the administration and the novelty of issues presented.

(f) The attorney’s participation in tax planning for the estate and the estate’s beneficiaries and tax return preparation, review, or approval.

(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries.

(h) Any delay in payment of the compensation after the services were furnished.

(i) Any agreement relating to the attorney’s compensation and whether written disclosures were made to the personal representative in a timely manner under the circumstances pursuant to subsection (2).

(j) Any other relevant factors.

(6) If a separate written agreement regarding compensation exists between the attorney and the decedent, the attorney shall furnish a copy to the personal representative prior to commencement of employment, and, if employed, shall promptly file and serve a copy on all interested persons. A separate agreement or a provision in the will suggesting or directing that the personal representative retain a specific attorney does not obligate the personal representative to employ the attorney or obligate the attorney to accept the representation, but if the attorney who is a party to the agreement or who drafted the will is employed, the compensation paid shall not exceed the compensation provided in the agreement or in the will.

History.—s. 4, ch. 93-257; s. 2, ch. 95-401; s. 142, ch. 2001-226; s. 1, ch. 2021-145.

F.S. 733.6171 on Google Scholar

F.S. 733.6171 on Casetext

Amendments to 733.6171

Arrestable Offenses / Crimes under Fla. Stat. 733.6171

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 733.6171.

Annotations, Discussions, Cases:

Cases from cite.case.law:

SIMMONS, v. ESTATE OF Dr. S. BARANOWITZ, 189 So. 3d 819 (Fla. Dist. Ct. App. 2015)

. . . See §§ 733.617(1) & 733.6171(3), Fla. . . .

In WEST, III, v. CHRISMAN,, 518 B.R. 655 (M.D. Fla. 2014)

. . . Agreement, which proposed that fees be “calculated pursuant to the provisions of Florida Statutes § 733.6171 . . . Indeed, although the “Amount of Fees” purports to be calculated pursuant to Florida Statutes §§ 733.6171 . . . Stat. §§ 733.6171(2), 736.1007(2). . . . He admits that he knew that the provisions of Florida Statutes §§ 733.6171 and 737.2041 were not mandatory . . . based on the value of the trust assets ... at the rate of 75 percent of the schedule provided in s. 733.6171 . . .

B. BOOKMAN, E. v. DAVIDSON,, 136 So. 3d 1276 (Fla. Dist. Ct. App. 2014)

. . . See §§ 733.612(19) & 733.6171(1), Florida Statutes. . . .

GEARY, v. BUTZEL LONG, P. C., 13 So. 3d 149 (Fla. Dist. Ct. App. 2009)

. . . Butzel Long, as attorney for the personal representative, claimed fees pursuant to sections 733.6171 . . .

GLANTZ AND GLANTZ, P. A. v. CHINCHILLA,, 17 So. 3d 711 (Fla. Dist. Ct. App. 2009)

. . . . § 733.6171, Fla. Stat. (2007). . . . Section (5) enumerates nine specific factors a court must consider in determining a reasonable fee. § 733.6171 . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 964 So. 2d 140 (Fla. 2007)

. . . . § 733.6171, Fla. Stat. Compensation of attorney for the personal representative. § 733.6175, Fla. . . . Revision: Addition in (a)(4) of specific attorney fee compensation disclosure requirements found in § 733.6171 . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 948 So. 2d 735 (Fla. 2007)

. . . committee notes. 1996 Revision: Addition of specific fee waiver disclosure requirements found in § 733.6171 . . . Representation. § 733.6171, Fla. Stat. . . . Revision: Addition in (a)(4) of specific attorney fee compensation disclosure requirements found in § 733.6171 . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES TWO YEAR CYCLE, 912 So. 2d 1178 (Fla. 2005)

. . . Revision: Addition in (a)(4) of specific attorney fee compensation disclosure requirements found in § 733.6171 . . .

A. BAUMANN, v. ESTATE OF BLUM,, 898 So. 2d 1106 (Fla. Dist. Ct. App. 2005)

. . . The Florida Probate Code in section 733.6171(4), Florida Statutes (2003), provides that “[i]n addition . . . thereby denied Bau-mann’s claim for extraordinary services fees, contrary to the mandate of section 733.6171 . . .

W. FRAZIER T. Jr. Co- S. v. A. BRECHLER, S., 868 So. 2d 673 (Fla. Dist. Ct. App. 2004)

. . . services due to Appellee, as personal representative, pursuant to the factors contained in section 733.6171 . . .

AMENDMENTS TO THE FLORIDA PROBATE RULES, 848 So. 2d 1069 (Fla. 2003)

. . . committee notes. 1996 Revision: Addition of specific fee waiver disclosure requirements found in § 733.6171 . . . Representation. § 733.6171, Fla. Stat. . . . Compensation of personal representative. § 733.6171, Fla. Stat. . . . Revision: Addition in (a)(4) of specific attorney fee compensation disclosure requirements found in § 733.6171 . . .

VENIS, v. GREENSPAN,, 833 So. 2d 208 (Fla. Dist. Ct. App. 2002)

. . . both sought fees based on the sliding scale percentage fee rate provided for in sections 733.617 and 733.6171 . . . decision to award fees based on the sliding scales provided in section 733.617 for the P.R. and section 733.6171 . . . sought a separate enhancement of his fee for preparing the federal estate tax return based on section 733.6171 . . . Section 733.6175(2), Florida Statutes (1992), formerly section 733.6171(8), provides: Court proceedings . . .

AMENDMENTS TO THE FLORIDA PROBATE RULES, 824 So. 2d 849 (Fla. 2002)

. . . reprosentative(s) aro disclosed on Schedule F, unless-the disclosure is waived pursuant-to Section 733.6171 . . .

THE FLORIDA BAR, v. T. CARLON, Jr., 820 So. 2d 891 (Fla. 2002)

. . . Carlon was entitled to an approximate fee of $3435 under section 733.6171, Florida Statutes (2000). . . . For instance, section 733.6171 sets forth a statutorily presumed reasonable fee for the personal representative . . . no rule 4-1.5(a) violation where amount charged in probate matter was consistent with amount section 733.6171 . . .

MARVIN AND KAY LICHTMAN FOUNDATION, v. In ESTATE OF LICHTMAN,, 773 So. 2d 1232 (Fla. Dist. Ct. App. 2000)

. . . personal representatives and their attorney, Stiss, were calculated pursuant to sections 783.617 and 733.6171 . . .

M. BRAKE, M. v. P. SWAN, E., 767 So. 2d 500 (Fla. Dist. Ct. App. 2000)

. . . .” § 733.6171(6), Fla. Stat. (1997). . . .

A. KUSHNER, Co- v. ENGELBERG, CANTOR LEONE, P. A., 750 So. 2d 33 (Fla. Dist. Ct. App. 1999)

. . . Appellee points to section 733.6171(3), Florida Statutes (1993), as support for its award, noting that . . . See § 733.6171(3). . . . See § 733.6171(4). . . .

E. CANNIE, v. ESTATE OF K. CANNIE,, 728 So. 2d 339 (Fla. Dist. Ct. App. 1999)

. . . Section 733.6171, Florida Statutes, sets forth the bases for payment of fees for extraordinary services . . . Although we understand the trial court’s reason for including the quoted language in the order, § 733.6171 . . .

In ESTATE OF D. O CONNELL, O v. F. Jr. O D. O D. O Jr., 725 So. 2d 385 (Fla. Dist. Ct. App. 1998)

. . . As to this latter point, the statutory authority to which Boose, Casey points, section 733.6171, does . . .

BITTERMAN, v. BITTERMAN, BITTERMAN, v. H. WEIDENBENNER,, 714 So. 2d 356 (Fla. 1998)

. . . In addition, section 733.6171(7) allowed an attorney to recover costs for the time expended by the attorney . . . Section 733.6171(8) further provides: This section shall apply to estates in which an order of discharge . . . First, both courts relied on section 733.6171(7). . . . Williams responded with a motion to determine the applicability of section 733.6171. . . . The effective date of section 733.6171 was October 1, 1993. . . .

In ESTATE OF McQUEEN, E. HOLLEY R. v. FIRST GUARANTY BANK TRUST COMPANY,, 699 So. 2d 747 (Fla. Dist. Ct. App. 1997)

. . . of record to testify for the bank as an expert witness; (5) the probate court’s finding that section 733.6171 . . . and (9) the constitutionality of the probate court’s application of the statutory changes to section 733.6171 . . . Both the 1993 and 1995 versions of section 733.6171, Florida Statutes, provide in part: (1) Attorneys . . . Counsel analogized the 1995 version of section 733.6171(3), the provision for calculation of attorney . . . The term “substantially unreasonable” appears in the 1995 version of section 733.6171. . . .

ZEPEDA Jo v. B. KLEIN,, 698 So. 2d 329 (Fla. Dist. Ct. App. 1997)

. . . The passage of section 733.6171(8), Florida Statutes (1995), superseded the holding of Platt excluding . . .

In ESTATE OF C. GOOD, FIRST OF AMERICA BANK- CENTRAL, v. SITOMER,, 696 So. 2d 876 (Fla. Dist. Ct. App. 1997)

. . . trial court determined Herb & Medniek were entitled to an award of attorneys fees pursuant to section 733.6171 . . . Supp.1990), controls the issue of attorney’s fees against this estate, or whether the amended section 733.6171 . . . We reject Herb & Med-nick’s argument section 733.6171(7), Florida Statutes (1993) would allow a fee, . . . representative’s attorney” related to court proceedings to determine compensation for that attorney. § 733.6171 . . .

AMENDMENTS TO FLORIDA PROBATE RULES, 683 So. 2d 78 (Fla. 1996)

. . . 5.180 and 5.400 are amended to include the specific fee waiver disclosure requirements found in section 733.6171 . . . committee notes. 1996 Revision: Addition of specific fee waiver disclosure requirements found in § 733.6171 . . . Representation. § 733.6171, Fla.Stat. . . . compensation for attorneys for the personal representatives are as follows: Florida Probate Code, F.S. 733.6171 . . . Compensation of personal representatives-and-professionals. § 733.6171, Fla.Stat. . . . Revision: Addition in (a)(1) of specific attorney fee compensation disclosure requirements found in § 733.6171 . . .

BITTERMAN v. BITTERMAN, BITTERMAN v. H. WEIDENBENNER, O, 685 So. 2d 861 (Fla. Dist. Ct. App. 1996)

. . . Section 733.6171(8) indicates an effective date of October 1,1993, and directs: (8) This section shall . . . Clearly, it falls within the purview of section 733.6171(8), Florida Statutes (1993). . . . Section 733.6171(7), Florida Statutes (1993), provides: Court proceedings to determine compensation, . . . We note that section 733.6171 does not distinguish between current and former agents. . . . To limit section 733.6171 to only current counsel when its companion section, 733.6175, clearly does . . .

ESTATE OF BROCK, BROCK, Jr. v. D. BROCK,, 695 So. 2d 714 (Fla. Dist. Ct. App. 1996)

. . . approval of compensation of professionals merely as a cautionary measure, urging that under section 733.6171 . . . Section 733.6171, Florida Statutes (1993), provides in part: (1) Attorneys for personal representatives . . . attorney’s and accountant’s fees without reference to the percentage formula authorized by section 733.6171 . . . Our reading of section 733.6171(4) leads us to conclude that appellee’s petition for a decrease in the . . . As to the portion of the order which approved compensation of the accountant, section 733.6171 does not . . .

COLLEGE, v. A. BOURNE,, 670 So. 2d 1118 (Fla. Dist. Ct. App. 1996)

. . . Under section 733.6171, Florida Statutes (1993), compensation for attorneys of personal representatives . . . Williams responded with a motion to determine the applicability of section 733.6171. . . . The panel held that a retrospective application of section 733.6171 which served to increase the estate . . . We agree with Williams College, however, that section 733.6171(7), Florida Statutes (1993), cannot be . . . The effective date of section 733.6171(7), Florida Statutes (1993), was October 1, 1993. . . .

SITOMER, v. FIRST OF AMERICA BANK- CENTRAL,, 667 So. 2d 456 (Fla. Dist. Ct. App. 1996)

. . . Sitomer’s award reasonable compensation under section 733.6171, Florida Statutes (1993). . . . Sitomer requested compensation under section 733.6171, Florida Statutes, in the amount of $265,236.57 . . . In determining compensation, the trial court applied section 733.6171, Florida Statutes (1993), entitled . . . parties, compensation for the personal representative can be determined in accordance with section 733.6171 . . .

L. BERGER, J. D. LL. M. P. A. v. E. BROOKS, L., 657 So. 2d 1281 (Fla. Dist. Ct. App. 1995)

. . . order entered by the probate division of the circuit court which declared unconstitutional section 733.6171 . . . He further contended that quantum meruit would be $8,800, calculated pursuant to section 733.6171,Florida . . . We reverse the order declaring section 733.6171, Florida Statutes (1993), unconstitutional. . . . We do not view section 733.6171 as changing in any manner the rule stated in Rosenberg v. . . . Newly-enacted section 733.6171, Florida Statutes (1993), took effect October 1, 1993. . . .

WILLIAMS COLLEGE, v. A. BOURNE, C., 656 So. 2d 622 (Fla. Dist. Ct. App. 1995)

. . . The issue in this case is whether section 733.6171, Florida Statutes, enacted in 1993, controls the award . . . The trial court, applying section 733.6171, determined that a reasonable fee would be $116,676.10. . . .

THE FLORIDA BAR, v. GARLAND,, 651 So. 2d 1182 (Fla. 1995)

. . . We agree with Garland that in light of sections 733.617 and 733.6171, Florida Statutes (1993), which . . . Although sections 733.617 and 733.6171 did not became effective until after the Locke estate was closed . . . expended, times a reasonable fee for his services and for the services of persons under his supervision. § 733.6171 . . .