Legal Fees Awarded in Florida Probate Must Help, Not Harm, Estate

It is basic Florida probate law that attorney fees can be awarded when the legal services were for the benefit of the estate.  But what happens when some of the legal services ended up causing harm to the estate?

The recent Florida appellate case Acker.v Acker,  (Fla. 4th DCA  2015) addressed the issue of what to do when some of the legal services help the estate, and some of the legal services harm the estate. 

Under Florida law, and specifically in probate litigation, a trial court is permitted to order an award for fees and costs that are determined to be “necessary and beneficial to the Estate and/or Trust.” See, e.g., Estate of Brock, 695 So. 2d 714, 717 (Fla. 1st DCA 1996); Barnett v. Barnett, 340 So. 2d 548, 550 (Fla. 1st DCA 1976).  In Acker, however, the trial court found that actions taken were necessary and beneficial to the estate.  However, the trial court’s order also noted that certain conduct was “adverse and detrimental to the best interests of the Estate and Trust.”

Because of this “internal inconsistency” in the trial court’s order, the appellate court reversed and remanded, ordering the trial court to “enter a new order that sets forth the basis for the award without this internal inconsistency.” (citing In re Guardianship of Ansley, 94 So. 3d 711, 714 (Fla. 2d DCA 2012) (reversing an award of fees to an attorney who performed work for a ward’s estate, and remanding for the trial court “to enter a new order that sets forth the basis for the award,” because the order awarded an amount less than requested by the attorney without explaining what led to the ruling, thereby creating an “internal inconsistency”)).

Orders from probate trial courts in Florida should accordingly set forth the grounds for an award of attorney fees, and such grounds should be internally consistent and logical.

Pinellas County (Clearwater)

Matthew Weidner

Orange County (Orlando)

Philip W. Gunthert

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Hillsborough County (Tampa)

R. Todd Burbine

Sarasota County

Dawn Bates-Buchanan

Lee County (Ft. Myers)

Scott Kuhn

Duval County (Jacksonville)

Long H. Duong

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