When the statute says the personal representative's attorney "shall" be paid for services rendered, that's what it means, and it's reversible error for a court to rule otherwise
Baumann v. Estate of Blum, 30 Fla. L. Weekly D842 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed)
Getting paid fairly for the work you do is sometimes merely an "aspirational" goal for attorneys. It doesn't have to be that way . . . especially when the law says you're entitled to payment. In this case, the personal representative objected to the fees his own attorney petitioned for. Hillsborough County Circuit Court Judge Susan Sexton referred the matter to a general master and then simply adopted the general master's report and recommendations wholesale without conducting a hearing.
In the course of reversing the trial court, the Second DCA provides very valuable guidance for any attorney trying to make sure he or she gets paid for services rendered.
First, if you don't agree with the general master's report, the court is required to conduct a hearing on your objections. The Second DCA summarized this rule as follows:
Florida Rule of Civil Procedure 1.490(h) provides that if exceptions are filed to a general master's report, they shall be heard "on reasonable notice by either party." This rule has been interpreted to require a mandatory hearing before the trial court "if one is requested." See Ellett v. Ellett, 546 So.2d 1108, 1109 (Fla. 2d DCA 1989).
Second, if you provide extraordinary services, the court is required to award fees for those services from assets of the estate. The Second DCA summarized this rule as follows:
The Florida Probate Code in section 733.6171(4), Florida Statutes (2003), provides that "[i]n addition to fees for ordinary services, the attorney for the personal representative shall be allowed further reasonable compensation for any extraordinary service." (Emphasis added.) Neither the general master nor the trial court has discretion to decline an award of fees for extraordinary services upon proper proof.
Third, if you pay the costs associated with giving formal notice, the court is required to reimburse you for those costs from assets of the estate. The Second DCA summarized this rule as follows:
Florida Probate Rule 5.241(a) requires the personal representative to serve notice to creditors of the decedent who are reasonably ascertainable. Rule 5.040(d) authorizes the personal representative to choose the option of giving formal notice. Formal notice includes service by "any form of mail requiring a signed receipt." See Fla. Prob. R. 5.040(a)(3). Therefore, the trial court erred by denying reimbursement for the registered mail costs.
Fourth, if expert testimony is offered in a fee hearing, the court is required to order payment of expert witness fees from the assets of the estate. The Second DCA summarized this rule as follows:
Section 733.6175(4) mandates that if expert testimony is offered in a fee hearing, "a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate." (Emphasis added.) Again, this is not a discretionary matter. Therefore, the trial court erred by failing to determine a reasonable fee for [the attorney's] testifying expert and order that it be paid from the assets of the estate.
Maybe the trial court had experience with Baumann's history of claiming extraordinary services without providing benefit? Baumann's history demonstrates concern for his fees over his services.
Dear Anonymous,
For me, your comment highlights a very important theme that runs through these fee-dispute cases. As currently structured, the Florida Probate Code cedes only limited discretion to trial judges when it comes to attorneys' fees in probate matters. If un-controverted evidence is presented in accordance with F.S. § 733.6175, the statute mandates payment. As such, if the trial judge in this case "had experience with Baumann's history of claiming extraordinary services without providing benefit," then it was incumbent on the judge (or opposing counsel) to articulate those concerns on the record.
Regards. Juan.