PROBATE CORNER
PROBATE CORNER
Post-Trial Remedies For Breach Of Trust
DAVID M. GARTEN
Sec. 736.0802( 10), F. S. establishes a procedure when a trustee seeks to use trust assets to pay attorney fees and costs incurred when defending a breach of trust claim. Sec. 736.0802( 10)( g) provides that if a claim or defense of breach of trust is withdrawn, dismissed, or judicially resolved without a determination that the trustee has committed a breach of trust, the trustee is authorized to use trust assets to pay attorney fees and costs and may do so without service of a notice of intent or order of the court. This statute controls irrespective of whether the final judgment provides that " each party shall be responsible for their own respective attorney ' s fees and costs ". Johnson v.
Wolter, 2025 Fla. App. LEXIS 9283( Fla. 6th DCA 2025).
What if the court determines at trial that the trustee committed a breach of trust? Is the trustee authorized to use trust assets to pay attorney fees and costs without a court order? Maybe. Sec. 736.0802( 10) provides that payment of costs or attorney fees incurred in any proceeding may be made by a trustee from assets of the trust without the approval of any person and without court authorization. In addition, § 736.0201( 6)( a) provides that trustee’ s fees do not constitute taxation of costs or attorney fees requiring a motion under Florida Rule of Civil Procedure 1.525. However, depending on the basis for the breach, the trustee’ s payment of attorney’ s fees and costs may be voidable. For example, if the trustee has a conflict of interest in the management of trust property, he may need a court order to pay the fees and costs. See § 736.0802( 2)( b) and Keye v. Gautier, 684 So. 2d 210( Fla. 3rd DCA 1996). In addition, when a trustee is acting for himself and not for the benefit of the trust or the beneficiaries, he violates
the duty of loyalty and the payment of his attorney’ s fees and costs as an expense of the trust is voidable. See Bronstein v.
Bronstein, 332 So. 3d 510( Fla. 4th DCA 2021) and Soss v. Bloom( In re Bloom), 295 So. 3d 1255( Fla. 2d DCA 2020).
Can a beneficiary recover payment of attorney’ s fees and costs from the trust post-trial? Maybe. Sec. 736.0802( 10)( h) provides that“[ t ] his subsection does not limit proceedings under s. 736.0206 or remedies for breach of trust under s. 736.1001, or the right of any interested person to challenge or object to the payment of compensation or costs from the trust.” Although this statute does not specifically provide for recovery posttrial for the trustee’ s failure to serve a notice of intent during the pendency of the litigation, Kritchman v. Wolk, 152 So. 3d 628( Fla. 3rd DCA 2014) is supporting authority for a beneficiary’ s recovery posttrial.
The final judgment should specifically reserve jurisdiction on the beneficiary’ s objections to the payment of compensation or costs from the trust, citing the statutory basis for the objections and the names of the individuals involved. A general reservation of jurisdiction to determine attorney’ s fees and costs may not be sufficient.“ It is well established in this state that once a final judgment has been rendered and the time for filing a petition for rehearing or motion for new trial has passed the court loses all jurisdiction over the cause other than to see that proper entry of the judgment or decree is made and that the rights determined and fixed by it are properly enforced.” See Jared v.
Jackson, 483 So. 2d 51( Fla. 4th DCA 1986). The trial court ' s reservation of jurisdiction to enforce the final judgment does not authorize the court to impose a new restriction that is not stated in the final judgment. Johnson v. Wolter, supra.
In addition, the trustee must be served individually with process. A challenge or objection to the payment of compensation or costs from the trust is tantamount to a judgment for damages requiring personal service on the fiduciary as an individual and not in any representative capacity. See Kozinski v. Stabenow, 152 So. 3d 650( Fla. 4th DCA 2014); Miller v. Moore, 391 So. 3d 938( Fla. 4th DCA 2024). Assuming disgorgement is sought against the trustee’ s attorney, the attorney must also be served with process. See Simmons v. Estate of Baranowitz, 189 So. 3d 819( Fla. 4th DCA 2015).
Practitioner’ s Corner: Sec. 736.0802( 10) is a trap for an unwary trustee who fails to serve a written notice of intent upon each qualified beneficiary of the trust whose share of the trust may be affected by the payment before such payment is made. To prevent the trustee from using trust assets to defend against a claim for breach of trust, the movant must prove that there is a“ reasonable basis to conclude that there has been a breach of trust”. Given the discretionary nature of the proceeding, the limitations on early discovery, the cost associated with the evidentiary hearing, and the limited nature of the requested relief, this procedure is of little benefit to the trust litigator.
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