Probate, trust, guardianship and inheritance litigation
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Power to Award Appellate Attorney’s Fees For Services Rendered To an Estate Belongs Exclusively To Florida Probate Court

By:  Jeffrey Skatoff, Esq.

In Townsend v. Mansfield, an October 6, 2021 opinion from Florida’s First District Court of Appeal, the Court affirmed a judgment granting the assessment of attorney’s fees against a party’s share of the probate estate, and wrote separately to address the Appellees’ motion for attorney’s fees for appellate services rendered to the Florida estate in the appeal.

Attorney’s Fees For Services Rendered To an Estate

Attorney’s fees in probate cases are governed by the Florida Probate Code’s fees and costs provisions. §733.106, Fla. Stat.  The probate court is a court of equity. §733.106(1), Fla. Stat. The Florida probate court has authority to award fees to “[a]ny attorney who has rendered services to an estate.” §733.106(3), Fla. Stat.

Read the Complete Guide to Attorney’s Fees in Florida Probate

Appellate Attorney’s Fees In General

Generally, in probate and other appeals, only the appellate court can award attorney’s fees associated with the appeal.  A party must file a motion in the appellate court requesting an award of fees for the appellate work, which will generally be granted if a basis existed in the lower tribunal for an award of fees.  See Rule 9.400, Florida Rules of Appellate Procedure.

Only the Florida Probate Court Has the Power to Award Appellate Attorney’s Fees For Services Rendered To Estate

The Florida probate court has the exclusive ability to award fees for appellate services if the basis of the claim is services rendered to the estate.  The appellate court stated:

As a court of equity, the probate court is also expressly permitted to make discretionary allocations for fee awards. “When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid.” § 733.106(4), Fla. Stat. This discretionary allocation of costs and fees is part of the probate court’s exclusive jurisdiction over the settling of estates.  And this Court is without authority to award attorney’s fees in probate matters, even for appellate services performed, where the basis of the claim is provision of a benefit to the estate. This remains true where, as here, the benefit to the estate is defense against another beneficiary’s frivolous action.

The supreme court held “the award of attorney’s fees against a decedent’s estate for services to the estate in an appellate court is part of the settlement of estates of decedents as to which probate courts have exclusive jurisdiction.” Garvey v. Garvey, 219 So. 2d 685, 686 (Fla.1969) (internal quotation marks omitted). Fees arising from disputes between heirs and devisees, where all the relevant litigants claim to act on behalf of the estate, generally fall within this class. See In re Est. of Udell, 501 So. 2d 1286, 1288( Fla. 4th DCA 1986) (distinguishing between fees based on claims against an estate and those for the benefit of an estate, and holding that the latter is in the exclusive jurisdiction of the probate court).

The Florida probate court has exclusive jurisdiction over the settlement of estates, and the award of attorney’s fees against a decedent’s estate for services to the estate falls within that jurisdiction.  The appellate court therefore denied the fee motion without prejudice to the appellees’ right to move the probate court to award attorney’s fees for defending the appeal and a corresponding assessment against Appellant’s portion of the estate.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

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