Attorneys fees of a trustee defending a breach of trust action are not automatically permitted to be paid from trust assets.
Generally, in a non-breach case, Florida law permits a trustee to use trust assets to pay attorneys’ fees and costs incurred in connection with trust administration without a court order. Because a court order is not required under these circumstances, a trustee is empowered to pay its legal fees without either (i) permission from trust beneficiaries; or even (ii) notice to the beneficiaries.
Fla. Stat. 736.1007(1) is one such statute on this point and states in pertinent part:
(1) If the trustee of a revocable trust retains an attorney to render legal services in connection with the initial administration of the trust, the attorney is entitled to reasonable compensation for those legal services, payable from the assets of the trust without court order.
Fla. Stat. 736.0802(10) extends this doctrine to court proceedings:
(10) Payment of costs or attorney’s fees incurred in any proceeding from the assets of the trust may be made by the trustee without the approval of any person and without court authorization, unless the court orders otherwise as provided in paragraph (b).
A Trustee Defending A Breach Action Needs To Provide Notice To Beneficiaries Of Intent To Use Trust Assets For Attorney’s Fees
A trustee’s entitlement to pay legal fees from trust assets is not without limitation, however. Where allegations involving breach of trust are brought against the trustee, the trustee may need a court order should he or she wish to continue paying attorneys’ fees with trust assets.
Fla. Stat. §736.0802(10)(a) explains the procedure that a trustee accused of breach of trust must follow if he or she intends to use trust assets—and not personal assets—in defending a breach of trust action.
Specifically, prior to paying any fees incurred in defending the claim, the trustee must notify all qualified beneficiaries in writing that the trustee intends to pay its legal defense using trust assets. The notice must further inform the beneficiaries of their right to seek a court order prohibiting the trustee from using trust assets to pay attorneys’ fees. This notice must be sent by some means requiring a signed receipt from the addressee or as provided in the Florida Rules of Civil Procedure for service of process. See Fla. Stat. §736.0802(10)(a).
A beneficiary who objects to such use of trust assets in a breach of trust proceeding must obtain a court order prohibiting the trustee from using trust assets to pay the costs of his or her legal defense. Fla. Stat. § 736.0802(10)(b). For this order to issue, the beneficiary must present evidence sufficient to provide a basis upon which the court can conclude there has been a breach of trust. Id. Upon such a showing, and absent good cause, the court is required to enter an order (i) prohibiting the payment of further attorney’s fees and costs from the assets of the trust; and (ii) requiring that all attorney’s fees or costs previously paid from assets of the trust be refunded.
What If a Trustee Pays Attorney’s Fees From Trust Assets Without A Court Order?
Because attorneys’ fees incurred in adversarial matters can be substantial, it is imperative that a trustee be aware of this procedure and strictly follow it. Substantial penalties—including an action for surcharge, sanctions, a court-ordered refund—are all available remedies against trustees who do not adhere to this required protocol.