fLoriDAstAtuteCHAnge , ComPensAtionofAttorneYforPersonALrePresentAtive
Real Property , Probate & Trust law Section
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to the personal representative :
1 . There is not a mandatory statutory attorney fee for estate administration .
2 . The attorney fee is not required to be based on the size of the estate , and the presumed reasonable fee provided in subsection ( 3 ) may not be appropriate in all estate administrations .
3 . The fee is subject to negotiation between the personal representative and the attorney .
4 . The selection of the attorney is made at the discretion of the personal representative , who is not required to select the attorney who prepared the will .
5 . The personal representative shall be entitled to a summary of ordinary and extraordinary services rendered for the fees agreed at the conclusion of the representation . The summary shall be provided by counsel and shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation .
The statute further states that the personal representative must timely acknowledge the above disclosures in writing , and if not , the attorney may not be paid for services without either court approval or written consent of all interested parties in the proceeding . Therefore , it is prudent for probate practitioners to review the change in statute and add the required disclosures to their engagement letters .
An engagement letter , signed by the personal representative before commencement of the case , with said disclosures , should be used in every probate to avoid the requirement of court approval for fees . Without court approval , the attorney may obtain written consent of fees by all interested parties in the probate . An interested party “ means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved .” 1 Keep in mind that obtaining written approval of fees from all interested parties may become quite cumbersome .
Probate attorneys should also be mindful of keeping accurate time records for each case , distinguishing between ordinary and extraordinary services . A personal representative shall be entitled to a summary of services rendered showing total hours spent at the conclusion of the probate . Although the attorney and personal representative may have agreed upon a flat fee for the administration of the probate ; presumably the negotiated fee should reflect the attorney ’ s time spent on the probate administration .
Although engagement letters and maintaining accurate billing records is nothing new in the practice of law , now , probate attorneys must include the required statutory language in their engagement letters to avoid obstacles to receiving compensation at the conclusion of a probate . n
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Section 731.201 ( 23 ), Florida Statutes .
Author : Elaine N . McGinnis - Law Office of Elaine McGinnis , P . A .
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