Yes, a beneficiary can be personally responsible for attorney fees in estate litigation in Florida probate. The recent case of Lopez v. Hernandez, 2020 Fla. App. Lexis 2508 (5th DCA 2020), however, explains when fees cannot be awarded.
Imposition of Personal Liability For Fees Requires a Legal Basis
Williams was the attorney for Ruben when he was the personal representative. The court determined that Ruben directed Williams to engage in frivolous litigation on behalf of the estate. The trial court awarded Williams his attorney fees, and apportioned one-half against the estate, and one-half against Ruben personally. The trial court also imposed a charging lien on Ruben’s portion of the estate in favor of Williams.
In reversing, the appellate court struck down both the imposition of personal liability for attorney fees against Ruben, as well as the charging lien. Regarding the issue of personal liability, the appellate court explained:
We review the probate court’s interpretation of a statute de novo. See Brindise v. U.S. Bank Nat’l Ass’n, 183 So. 3d 1215, 1217 (Fla. 2d DCA 2016) (citing W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012)). While section 733.106(4) allows probate courts to direct the payment of attorney’s fees out of a beneficiary’s portion of an estate, it does not permit probate courts to impose personal liability for the estate’s attorney’s fees and costs. § 733.106(4), Fla. Stat. (2018); Bennett v. Berges, 50 So. 3d 1154, 1158 (Fla. 4th DCA 2010) (citing Snyder v. Bell, 746 So. 2d 1100, 1104 (Fla. 2d DCA 1999)); Dourado v. Chousa, 604 So. 2d 864, 866 (Fla. 5th DCA 1992) (citing Dayton v. Conger, 448 So. 2d 609, 611 (Fla. 3d DCA 1984)); Parker v. Fla. First Nat’l Bank of Jacksonville, 419 So. 2d 730, 732 (Fla. 1st DCA 1982). Accordingly, the probate court could not direct Ruben to pay the estate’s attorney’s fees himself.
In reversing the imposition of the charging lien, the appellate court explained:
A charging lien “is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983). We review a trial court’s decision to award a charging lien to an attorney for abuse of discretion. See Dyer v. Dyer, 438 So. 2d 954, 955-56 (Fla. 4th DCA 1983). Here, Williams was not entitled to a charging lien because “[t]he personal representative [*3] . . . received no fund or positive judgment or settlement out of [his] efforts.” See Correa v. Christensen, 780 So. 2d 220, 220-21 (Fla. 5th DCA 2001) (citing Sinclair, 428 So. 2d at 1383). Indeed, he merely administered the estate and produced no tangible return for the estate or the personal representative. See id.
The Lopez case does not state that a personal representative cannot ever be responsible personally for attorney fees for engaging in litigation – and the case does not address how Ruben could have been held accountable for engaging in frivolous litigation. Ruben wore two hats – one as a beneficiary, and the other as a personal representative. Florida law allows for the imposition of personal liability for attorney fees for someone wearing either hat, sometimes.
When Can A Beneficiary Be Personally Liable For Attorney’s Fees In Florida Probate?
A beneficiary of a Florida probate estate can be held personally liable for attorney’s fees in several situations.
First, if a 57.105 motion was served and ultimately filed, a beneficiary can be held personally responsible for 1/2 of the attorney’s fees of the filing party if the court determines that the beneficiary knew or should have known that the claim made was not supported by the material facts necessary to establish the claim or defense, or would not be supported by the application of then-existing law to those material facts. A beneficiary will have a 21 day period to withdraw claims that are the subject of a 57.105 motion, and an opportunity to avoid any risk of having to pay these fees.
The Florida probate code also identifies several specific proceedings that can potentially expose a beneficiary to personal liability for attorney’s fees. In the following proceedings, if fees are awarded, fees can be secured by a judgment that can be satisfied from other property of the party:
- Elective share proceedings;
- Actions brought challenging spousal rights as procured by fraud, duress, and undue influence;
- Actions to declare gifts under will void;
- Will reformation and modification proceedings;
- Breach of fiduciary duty actions;
- Review of employment of agents and compensation.
Read the Complete Guide to Attorney’s Fees in Florida Probate to learn more about attorney’s fees in Florida probate cases.
When Can A Florida Personal Representative Be Personally Liable for Attorney’s Fees?
A Florida personal representative can be found personally liable for attorney’s fees. A surcharge action can be filed against the personal representative demanding that the personal representative pay damages for their conduct out of their own funds.
In this case, since the court determined that the action was frivolous, an action for surcharge against the personal representative in his individual capacity would very likely have resulted in a judgment to pay fees. It is critical that the personal representative is served with the surcharge action in their individual capacity, so that they can be found personally liable.
A personal representative can also be personally liable for fees when the personal representative is not qualified to serve and fails to comply with section 733.3101, Fla. Stat.