Friday, January 6, 2012

Attorney's Fees For Rendering Services To An Estate

ARTICLE: Attorney's Fees For Rendering Services To An Estate

Sec. 733.106(3) provides: “Any attorney who has rendered services to an estate may be
awarded reasonable compensation from the estate.”  This statute is not restricted to
services that bring about an enhancement in value or an increase in the assets of  the
estate, but  also includes services that are successful in  effectuating the testamentary
intention set forth in the will, that prevent the appointment of a personal representative, or
that obtain the removal of a personal representative.

When is an attorney entitled to an award of attorney's fees pursuant to §733.106(3)?

ü In re Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983). In Lewis, a beneficiary
whose devise was being contested by the personal representative on the basis of undue
influence was  entitled to  an award of  attorney’s fees when the personal representative
voluntarily dismissed his petition. 

ü Duncombe v. Adderly, 2008 Fla. App. LEXIS 15405 (Fla. 4th DCA 10/8/08).  A
beneficiary who prevents the appointment of a designated personal representative or that
obtains the removal of a personal representative is entitled to an award of attorney's fees.

ü Menz v. Estate of Menz, 381 So.2d 375 (Fla. 1st DCA 1980).  In Menz, the surviving
spouse  was entitled to  her recover  attorney’s fees  necessitated by the personal
representative's failure to satisfy his duty to file a petition to determine the amount of the
elective share after a proper election had been made because the attorney's efforts on the
widow's behalf resulted in a change in the distribution under the will.

ü Johnson v. Burleson, 61 So.2d 170 (Fla. 1952). In Johnson, the surviving spouse was
entitled to recover her attorney’s fees where the legal services were necessary to require a
personal representative to carry out the provisions of a will and give the surviving spouse
the income as directed in the will.

ü In re Estate of Griffis, 366 So.2d 80 (Fla. 4th DCA 1978).  In Griffis, a beneficiary
who  successfully  argued  that decedent's destruction of two later codicils  revived the
provisions of the first codicil was  entitled to recover his attorney’s fees because  the
ultimate will  was determined and the estate was benefitted because  the beneficiaries
whom the testator intended are the ones who receive their legacies and bequests

ü Baumer v. Howard, 542 So.2d 400 (Fla. 1st DCA 1989).  In Baumer, a beneficiary was
entitled to  recover attorney’s fees  by establishing that the widow unlawfully and
intentionally killed the decedent because  the interest of the decedent in the entireties

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