By: David M. Garten, Esq.
ARTICLE: Trustee
Compensation
Sec. 736.0708, Fla. Stat. reads:
736.0708 Compensation of
trustee.
(1) If the terms of a trust do not specify the
trustee's compensation, a trustee is entitled to compensation that is
reasonable under the circumstances.
(2)
If the terms of a trust specify the trustee's compensation, the trustee
is entitled to be compensated as specified, but the court may allow more or
less compensation if:
(a) The duties of the trustee are substantially
different from those contemplated when the trust was created; or
(b) The compensation specified by the terms of
the trust would be unreasonably low or high.
(3) If the trustee has rendered other services in
connection with the administration of the trust, the trustee shall also be
allowed reasonable compensation for the other services rendered in addition to
reasonable compensation as trustee. In general,
a trustee's compensation depends upon
the extent and character of the
duties and responsibilities involved during the administration of the trust and must be reasonable in relation to the circumstances and the services actually rendered. See Osius v. Miami Beach First Nat.
duties and responsibilities involved during the administration of the trust and must be reasonable in relation to the circumstances and the services actually rendered. See Osius v. Miami Beach First Nat.
Bank, 74 So. 2d 779
(Fla.1954) (Trustees are entitled to a
reasonable compensation "for their services, and the care and
responsibility incident to their position.").
The following factors should be considered in
establishing/opposing the reasonableness of a trustee’s compensation:
●The amount of capital and
income received and disbursed by the trustee;
●The wages or salary
customarily granted to agents or servants for performing like work in the
community;
●The success or failure of
the administration of the trustee;
●Any unusual skill or
experience which the trustee in question may have brought to his work;
●The fidelity or disloyalty
displayed by the trustee;
●The amount of risk and
responsibility assumed;
●The time consumed in
carrying out the trust;
●The custom in the community
as to allowances to trustees by settlors or courts and as to charges exacted by
trust companies and banks;
●The character of the work
done in the course of administration, whether routine or involving skill and
judgment;
●Any estimate which the
trustee has given of the value of his own services; and
●Payments made by the cestuis to the trustee and intended to be applied
toward his compensation."
(Fla. 1958). The weight to be given to any one factor and what is reasonable compensation rests
in the discretion of the court in its consideration of the facts and circumstances of each trust and
the performance of the trustee.
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