Attorney fees are paid in connection with Florida probate, for administration and litigation purposes. Fees can be paid to the attorney for the personal representative, as well as attorneys for beneficiaries and litigants.

Ordinary Attorney Fees for Probate Administration

Florida law states that the attorney for the personal representative, for ordinary administration services, is entitled to compensation pursuant to Section 733.6171.  Section 733.6171(3) states that a percentage of the value of the estate is presumed reasonable if calculated based on the percentage schedule:

Compensation for ordinary services of attorneys in formal estate administration is presumed to be reasonable if based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during the administration as provided in the following schedule:

(a) One thousand five hundred dollars for estates having a value of $40,000 or less.
(b) An additional $750 for estates having a value of more than $40,000 and not exceeding $70,000.
(c) An additional $750 for estates having a value of more than $70,000 and not exceeding $100,000.
(d) For estates having a value in excess of $100,000, at the rate of 3 percent on the next $900,000.
(e) At the rate of 2.5 percent for all above $1 million and not exceeding $3 million.
(f) At the rate of 2 percent for all above $3 million and not exceeding $5 million.
(g) At the rate of 1.5 percent for all above $5 million and not exceeding $10 million.
(h) At the rate of 1 percent for all above $10 million.

 

Fees for Litigation and Extraordinary Services

Authority	How Fees Awarded	Awarded For	Source of Payment
732.2151: Elective Share Proceedings	As in chancery	Dispute regarding: Entitlement; Inclusion of assets and valuation; Satisfaction	Estate; or, Party’s interest in elective share or elective estate; or, Judgment that can be satisfied from other property of party
732.805: Spousal Rights Procured by Fraud, Duress, Undue Influence	As in chancery	All actions brought under section	Party’s interest in estate Judgment that can be satisfied from other property of party; or, Both
732.806: Gifts to Lawyers and other disqualified persons	As in chancery	All actions brought under this section, BUT no fees against a party who, in good faith, initiates an action under this section to declare gift void	Party’s interest in estate or trust Judgment that can be satisfied from other property of party; or, Both
733.106: Costs and attorneys fees[1]	(1) In all probate proceedings, as in chancery
	(2) To named personal representative or will proponent if nominated personal representative does not act in reasonable time	Good faith justified offering will for probate even if probate denied or revoked	Estate (discretion to direct from what part, no bad faith finding required)
	(3) Any attorney	Who has rendered services to an estate	Estate (discretion to direct from what part, no bad faith finding required)
733.1061: Fees and costs Will Reformation and Modification	As in chancery (attorneys fees and guardian ad litem fees)	For a proceeding arising under 732.615 (Reformation to correct mistakes) or 732.616 (Modification to achieve testator’s tax objectives)	Party’s interest in estate Judgment that can be satisfied from other property of party; or, Both
733.3101: Personal representative not qualified	Against personal representative personally	Failure to comply with section	Personal representative personally
733.608(8): General Power of Personal Representative	As in chancery	Any action for enforcement of debt described in section (Personal representative lien on homestead property)	Unclear, possibly same sources that personal representative can enforce payment of debt: Foreclosure of lien on homestead property Offset of debt against other property in personal representative’s possession; Offset of the debt against revenues from the protective homestead received by the personal representative
733.609: Improper exercise of Power; Breach of Fiduciary Duty[2]	Chancery	All action for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers	Party’s interest in estate Judgment that can be satisfied from other property of party; or, Both
733.6171: Compensation of Attorney for Personal Representative[3]	To attorney for personal representative	Reasonable compensation for ordinary services.  Fees computed on hourly basis or on percentage method.	Estate assets without court order
	To attorney for personal representative	Reasonable compensation for extraordinary services.  Fees typically hourly for the following services: Involvement in will contest, will construction, contested claims, elective share, and adversarial proceedings by or against estate Purchase, sale or lease of real estate Dealing with protected homestead.	Estate assets, upon petition of any interested person
733.6175: Proceedings for Review of employment of agents and compensation of personal representative and employees of estate[4]	As part of administration process	Proceedings to determine reasonable compensation of personal representative or any person employed by the personal representative	Estate assets (can direct from part of estate), unless substantially unreasonable
733.705: Payment of and Objection to Claims	Attorney for administrator ad litem	Defending estate in independent action after objection to creditor claim	May be awarded as provided by 733.106(3) (attorney who has rendered services to estate) If paid from estate, discretion to direct from what part shall be paid

[1] Dayton v. Conger, 448 So.2d 609 (Fla. 3rd DCA 1984) (beneficiaries not personally liable for fees); In re Estate of Lewis, 442 So. 2d 290, (Fla. 4th DCA 1983) (includes services that are successful in simply effectuating the testamentary intention set forth in the will); In re Estate of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989) (‘If the [attorney’s] services tend to break down, subtract from or dissipate the estate [the attorney] cannot be compensated from it.)

[2]Landon v. Isler, 681So. 2d 755 (Fla. 2d DCA 1996)( personal representative does not breach fiduciary duty by opposing a claim that later proves to be valid)

[3] Glantz & Glantz, P.A. v. Chinchilla, 17 So. 3d 711 (Fla. 4th DCA 2009); Venis v. Greenspan, 833 So. 2d 208 (4^th DCA 2002) (consideration of extraordinary fees).

[4] Geary v. Butzel Long PC, 13 So. 3d 149 (Fla. 4th DCA 2009)(discussion of review proceedings)

Is Due Process Required in the Award of Attorney Fees?

Yes!  Always state your grounds for fees and provide your opponent notice and an opportunity to be heard.

In Voyles v. Glavin, the  Court reversed a judgment awarding over $200,000 in attorney’s fees under the inequitable conduct doctrine.  This case is a stark reminder to always state your grounds for attorney’s fees, and always provide your opponent notice and an opportunity to be heard.

Attorney Glavin prepared Bobbye Kreisberg’s 2014 will and trust.  The will and trust benefitted several charities and left nothing to Bobbye’s brother, Richard Baxter.  Attorney Glavin was nominated as the personal representative and trustee.

Baxter filed a will contest, claiming that his sister lacked testamentary capacity and that Glavin employed undue influence.

After a few hearings, some written discovery, and one deposition, Glavin succeeded in having the will provisionally admitted to probate, subject to a trial on testamentary capacity and undue influence.  Shortly before trial, Baxter withdrew all of his objections.

Nearly a month after Baxter withdrew his objections, Glavin filed a motion to tax fees and costs against Baxter. Glavin’s motion stated it was made “pursuant to principles of equity applicable to chancery actions,” and cited to sections 57.041, 57.105, 733.106, 733.609, Florida Statutes (2020), and Florida Rules of Civil Procedure 1.420 and 1.525 as authority. There was no mention in the motion of “sanctions,” “the inequitable conduct doctrine,” “bad faith,” or anything remotely similar to any of those terms.

About a week before the hearing on Glavin’s motion to tax fees and costs, she filed 180 pages of supporting documents, none of which mentioned sanctions, inequitable conduct, bad faith, or anything similar.

On the day of the hearing, Glavin filed a notice of additional authorities in support of her motion to tax fees and costs against Baxter, and for the first time referenced the inequitable conduct doctrine.

After a hearing where only Glavin testified, the Florida probate court signed Glavin’s proposed judgment.  The inequitable conduct doctrine was the sole basis relied upon by the probate court for sanctioning Baxter with attorneys’ fees and costs totaling $220,042.82. The probate court’s final judgment did not mention any of the statutes or rules Glavin relied upon in her motion to tax attorneys’ fees. Despite well-settled law that requires orders awarding attorney’s fees to set forth explicit findings as to the number of hours reasonably expended and the reasonable hourly rate for the type of litigation involved, the final judgment made no such findings.

Baxter appealed the judgment of attorney’s fees awarding fees based on the inequitable conduct doctrine.

Litigation Examples

Must the Attorney Work Benefit the Estate to be Compensable?

Yes.  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 v. 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”)).

What Is Florida’s Inequitable Conduct Doctrine?

Under Florida law, “[t]he inequitable conduct doctrine permits the award of attorney’s fees where one party has exhibited egregious conduct or acted in bad faith.” Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998). “[T]his doctrine is rarely applicable. It is reserved for those extreme cases where a party acts ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Id. (internal citations omitted).

Inequitable Conduct Attorney’s Fees Cannot Be Awarded Without Due Process

A Florida trial court’s inherent authority to impose attorney’s fees as a sanction for bad faith or inequitable conduct is subject to due process requirements—namely notice and an opportunity to be heard, which includes the opportunity to present witnesses and other evidence.

Here, the final judgment awarding attorney’s fees did not mention any of the statutes or rules relied upon in Glavin’s motion.  Glavin’s motion to tax fees and costs against Baxter did not mention sanctions, bad faith, inequitable conduct, or anything remotely related to those terms.   The court determined:

We hold that providing notice mere hours before a hearing that Glavin might seek attorneys’ fees on some basis not identified in her motion, i.e., as sanctions under the inequitable conduct doctrine, does not comport with due process. Accordingly, we quash the final judgment, remand for entry of an order denying Glavin’s motion to tax attorneys’ fees and costs with prejudice, and for such other proceedings consistent with this opinion as may be appropriate to afford relief to Baxter.

As set forth in the Court’s opinion, an award of fees based on the Florida inequitable conduct doctrine is an extraordinary occurrence, and is not appropriate without notice and an opportunity to be heard.

Does a Florida Trial Court Have Jurisdiction To Award Attorney’s Fees After a Voluntary Dismissal?

Yes, a trial court has authority to award attorney’s fees after a voluntary dismissal, but such authority is limited:

A voluntary dismissal divests a trial court of jurisdiction when it immediately ends the litigation. See Dep’t of Rev. o/b/o Venzen, 294 So. 3d 3 See, e.g., Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985); Bishop v. Est. of Rossi, 114 So. 3d 235, 237 (Fla. 5th DCA 2013); Simhoni v. Chambliss, 843 So. 2d 1036, 1037 (Fla. 4th DCA 2003). 7 at 446; Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986) (“A trial judge is deprived of jurisdiction, not by the manner in which the proceeding is terminated, but by the sheer finality of the act, whether judgment, decree, order or stipulation, which concludes litigation.”). After the entry of a voluntary dismissal, a trial court’s authority to award attorney’s fees even under the inequitable conduct doctrine is limited. See Almazan v. Est. of Aguilera-Valdez, 273 So. 3d 9, 11 (Fla. 4th DCA 2019) (“[W]e hold that a trial court’s inherent authority to award attorney’s fees as a sanction for bad faith conduct on its own initiative does not extend beyond a voluntary dismissal.”); see also Pomeranz & Landsman Corp. v. Mia. Marlins Baseball Club, L.P., 143 So. 3d 1182, 1183 (Fla. 4th DCA 2014) (noting that a trial court has jurisdiction to consider 57.105 motion for sanctions “only where the motion for sanctions was filed with the court before a voluntary dismissal”).

Here, Baxter voluntarily dismissed the Florida will contest on July 29, 2020, when he withdrew all his objections to probate of the 2014 will and appointment of Glavin as personal representative.  On August 4, 2020, letters of administration were issued, and Glavin was appointed personal representative of the estate which led to normal estate administration. Glavin’s motion to tax attorneys’ fees and costs was not filed until August 28, 2020.

The Florida appellate court determined under this timeline and the posture of this case that the Florida probate court lacked jurisdiction to entertain and rule on Glavin’s motion for attorney’s fees and costs.

Only the Probate Court has Jurisdiction to Award Attorney Fees for Services Rendered to an Estate

In Townsend v. Mansfield, 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 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.

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.

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.

Interim Attorney Fees Must be Supported by Evidence

In Babun v. Stok Kon Braverman, the Court of Appeal determined that an interim award of attorney’s fees for services to an estate can be awarded before the final resolution of any litigation, as long as substantial competent evidence supports the award.

Sara is the daughter of Cristina and Jose.  After Jose’s death, Sara petitioned to be appointed as personal representative of Jose’s estate and co-trustee of Jose’s Third Amended and Restated Trust (“Trust”).  Cristina objected.  Sara was appointed as personal representative.  A neutral trustee was appointed.  Cristina filed an adversary proceeding against the Trust.

While the Florida adversary proceeding was pending, Cristina’s counsel filed a petition for interim fees for their work thus far in the pending estate and trust cases. They requested a total of $624,751, which represented fees in both the trust litigation, the estate, and costs.

Sara objected to the fee demand, citing the pending adversary claims against the Trust.  Additionally, Sara had petitioned earlier in the year to determine Cristina’s capacity, including her ability to hire counsel.

The Florida probate court held an evidentiary hearing on the interim fee petition.  Cristina’s attorneys argued that they had conferred a substantial benefit on the Estate and Trust and were entitled to interim fees.  Sara argued that the application for fees was premature because the statutory law required a prevailing party.  Because there was no determination on the merits, there was no basis for an award of interim attorney’s fees and costs.  Sara also argued that appellees had conferred no benefit to the estate.

Appellees testified as to the work they did to benefit the estate and trust – securing the appointment of an independent trustee, securing living expenses, and discovering fraudulent transactions.  Billing records were introduced, but no testimony was presented.  Attorney Stok conceded that in connection with the three cases in which he represented Cristina, there had been no judgments yet rendered in her favor. There was no testimony about customary fee rates, who did what, reasonable time expended, and on what tasks, etc. There was no testimony regarding costs incurred during the estate or trust litigation. The independent trustee testified that he had reviewed Appellees’ timesheets and noted they did not break down the fees sought by each litigation or for the topics of discovery, disqualification of counsel, elective share, or any other issue.

The trial court also determined that Cristina lacked capacity to retain Appellees.  The court determined that Cristina was incapacitated, lacked the ability to contract, and appointed a guardian.

Despite the lack of evidence and Cristina’s lack of capacity to retain counsel, and despite Appellees’ representation of Cristina and not the Estate itself, the trial court held this was not an absolute bar to a claim for legal fees if it was demonstrated that the legal services worked a benefit to the Estate and the Trust. The trial court noted that the litigation was ongoing, and the fee application was for interim legal fees, and rejected Sara’s argument that there was a prohibition on consideration of interim fees.

The court concluded that 1) Appellees must identify with particularity those time and expense items associated with the disqualification (of Sara’s counsel) issue and eliminate those items from Appellees’ bill; 2) because litigation was ongoing, Appellees’ request for compensation was premature and would be “held in abeyance” until it could be demonstrated how the work benefitted the Estate; and 3) benefits to Cristina were, to some degree, a consequence of Appellees’ representation. However, before the court could ascertain such compensable activity, Appellees would need to resubmit their fee petition “identifying with specificity those services provided to Cristina that also served the larger purpose of vivifying Jose Babun’s intent as testator and settlor[.]”

The Court also determined that because Appellees’ legal work led to the appointment of co-trustee Philip Shechter, whose work benefitted the Estate, Appellees’ time expended to secure the appointment of the co-trustee and assist him in discharging his duties should be compensated. The court required the Appellees to submit a new fee application specifically identifying the time associated with those efforts. The Appellees did submit a new fee petition, to which Sara objected, alleging the new fee application did not remedy the problems of the first fee application. Without conducting a hearing, the court granted the Appellees’ amended application minus the amount objected to by Cristina’s counsel.

Florida law provides that in all probate proceedings, any attorney who has rendered services to the estate may be awarded reasonable compensation from the estate or trust. § 733.106(3), Fla. Stat. (2021).

Florida’s Third District Court of Appeal stated:

There is sufficient evidence in the record to support the lower court’s conclusion that Cristina benefitted from the Appellees’ representation. The record on appeal, however, indicates that the lower court made no findings of fact or conclusions of law concerning the reasonableness of the hours or hourly rates necessary to support the award to Appellees of its fees and costs. An award of attorney’s fees without making adequate findings justifying the amount of the award is reversible error. Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985) (holding reversal is required when the trial court fails to make specific findings of fact as to the reasonable number of hours expended, the normal hourly rate, and the appropriateness of increasing or decreasing the lodestar). “The trial court must set forth ‘specific findings’ as to its determination of the number of hours, the hourly rate, and any reduction or enhancement factors.” Universal Prop. & Cas. Ins. Co. v. Deshpande, 314 So. 3d 416, 419 (Fla. 3d DCA 2020) (citing Joyce v. Federated Nat’l Ins. Co., 228 So. 3d 1122, 1126 (Fla. 2017)). This is true even in the instance where a party does not provide an appellate court with an adequate record or a transcript of proceedings. See Ivanovich v. Valladarez, 190 So. 3d 1144, 1148 (Fla. 2d DCA 2016) (“The lack of findings supporting the award of attorney’s fees is reversible error despite the [appellant’s] failure to provide an adequate record of the hearing.”); R.M.F. v. D.C., 55 So. 3d 684 (Fla. 2d DCA 2011) (same); Macarty v. Macarty, 29 So. 3d 434 (Fla. 2d DCA 2010).

Although the Florida Third District determined that an interim fees award was permitted for the work done in the estate and trust, a judgment awarding fees that contained no specific findings as to the reasonableness of the hours or hourly rates was reversible error.  Here, the Florida trial court did not even conduct a hearing resulting in the order awarding a substantial amount of fees.  The court stated:

Although the record on appeal contains the Appellees’ list of tasks, hours, and charges, those records are not organized in the manner ordered by the trial court, and coupled with the fact that the trial court did not make the required findings, we conclude that the record lacks competent substantial evidence necessary to support an award of fees and costs at this time. Diwakar v. Montecito Palm Beach Condo. Ass’n, 143 So. 3d 958, 960 (Fla. 4th DCA 2014) (“Competent evidence includes invoices, records[,] and other information detailing the services provided as well as the testimony from the attorney in support of the fee.”); Brake v. Murphy, 736 So. 2d 745, 747 (Fla. 3d DCA 1999); Clark v. Squire, Sanders & Dempsey, 495 So. 2d 264 (Fla. 3d DCA 1986). Because neither the record nor the order provides the specific findings as required by Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), we reverse and remand for a new hearing on attorney’s fees, in which the trial judge must set forth the findings as required by Rowe.

Reversed and remanded.

Can the Probate Court Review Fees Paid from Nonprobate Assets?

Yes.  In Faulkner v. Woodruff, a probate estate was opened with under $5,000 in personal property and a homestead residence.  The attorney for the personal representative charged $39,869 in attorney fees for work performed in the “uncontested” proceeding.  The personal representative of the estate, Mr. Faulkner, filed a petition to review the compensation of his attorney in his capacity as an interested person and as personal representative.  The probate court dismissed the petition on the grounds that: 

1. Mr. Faulkner was required to interplead himself into the proceedings as a respondent in the matter, even though he was the petitioner; and
2. The probate court was not the proper venue to determine the reasonableness of attorney fees; instead a suit for unjust enrichment or a proceeding before the Florida Bar was required.

The law firm also argued that the probate court could not determine whether its fees were reasonable, because the fees were paid from the proceeds of the sale of homestead property, and homestead property is excluded from the value of an estate in probate court, citing to Section 732.402 of the Florida Probate Code. Therefore, the probate court did not have jurisdiction to review the reasonableness of its fees and the dispute must be heard in the civil division of the circuit court. 

The appellate court made quick work of these positions.

1. The personal representative has the same right to have the probate court review compensation paid to the estate’s attorney.  Requiring the personal representative to interplead himself or herself was therefore not required.
2. The appellate court stated that there may be some ambiguity as to who has the burden of proof to establish the reasonableness of attorney fees charged to an estate. After reviewing the legislative history the court held that it appears that the legislature intended that the party seeking fees would bear the burden of establishing the reasonableness of such fees.  Otherwise, a personal representative could never petition a court to review the reasonableness of attorney’s fees in probate proceedings.
3. The probate court has the exclusive jurisdiction to determine compensation paid to the attorney for the estate.  Citing to the earlier case of Bookman v. Davidson, 136 So.3d 1276 (Fla. 1st DCA 2014) Section 733.6175(2), Florida Statutes, provides that “[c]ourt proceedings to determine the reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administrative proceedings. . . .” (Emphasis added.) Accordingly, it has been held that “the Florida probate court has exclusive jurisdiction [over the matter of compensation] and is obligated to review estate fees upon the petition of a proper party.” In re Winston, 610 So. 2d 1323, 1325 (Fla. 4th DCA 1992).
4. That the estate attorney was paid from a nonprobate asset was no barrier to the review of attorney fees paid to the probate attorney; indeed, the law firm’s argument that the probate court could not review its fees was “meritless.”   In citing to the earlier case of Richardson v. Jones, 508 So.2d 739 (Fla. 2d DCA 1987) the appellate court explained as follows:  In Richardson v. Jones, 508 So. 2d 739, 740 (Fla. 2d DCA 1987), the attorney argued that the probate court did not have the authority to order him to reimburse the estate for excessive fees, because the attorney had been paid personally by the personal representative of the estate and not from the estate assets. This court held, “We find this argument to be without merit. The court’s order simply carries out its obligation to review and determine the reasonableness of compensation to be paid to an attorney for a personal representative.” Id. The fact that an attorney may be paid from sources separate from the estate does not divest the probate court of its authority to determine whether the fees charged are reasonable. See Morrison v. Estate of DeMarco, 833 So. 2d 180, 182 (Fla. 4th DCA 2002) (holding that probate court had jurisdiction to order attorney to account for money she received from the sale of condominium that was homestead property, a nonprobate asset).

Appellate court opinions do not always set forth all of the underlying facts in a case.  It is difficult to determine how attorney fees could have been charged of almost $40,000 on an estate with less than $5,000 in personal property.  If the attorney fees were charged on the value of the homestead property (which is not a probate asset under Florida’s quirky rules), most commentators believe such is improper.  If the attorney fees were charged on an hourly basis for dealing with the homestead property, such could be appropriate depending on the circumstances, even though the appellate court described the estate as uncontested.