PROBATE CORNER
Payment of Trust Administration Expenses From Homestead Property
DAVID M . GARTEN
Issue : Can a trustee use the proceeds from the sale of protected homestead property owned by the trust to pay trust administration expenses ? Yes .
In Lanford v . Phemister , 2022 Fla . App . LEXIS 2612 ; 47 Fla . L . Weekly D 832 ; 2022 WL 1051583 ( Fla . 5th DCA 4 / 8 / 22 ), decedent died leaving her homestead property to a testamentary trust . There was no dispute that the protected homestead property was devised to an heir ( the primary beneficiary of the testamentary trust ) and therefore passed outside of the probate estate . Lanford , as the residuary beneficiary of the testamentary trust , appealed the probate court ' s final order authorizing reimbursement of the following from the sale of the decedent ’ s homestead property : ( a ) the personal representative fees , attorney ’ s fees , and costs incurred in administering the estate , ( b ) the testamentary trustee ’ s fees , attorney ’ s fees and costs incurred in administering the testamentary trust , and ( c ) the expenses advanced by the personal representative in maintaining the homestead after decedent died .
The appellate court found that the probate court erred in allowing for reimbursement of the personal representative fees , attorney ’ s fees , and costs from the homestead sale proceeds because Florida ' s constitutional homestead provisions forbade it . However , the appellate court affirmed payment of the testamentary trustee ’ s fees , attorney ’ s fees and costs from the homestead sale proceeds . The court reasoned :
“ Under Florida law , trustees have the power to pay trust expenses , their own compensation , and their attorney ' s fees from trust assets . § 736.0816 ( 15 ), ( 20 ), Fla . Stat . ( 2021 ). Decedent ' s will is silent on how the testamentary trustee will be paid , but it did not contemplate that the testamentary trustee would work for free . Further , Florida law also does not require trustees to work for free . Under Florida law , trustees have the power to pay trust expenses , their own compensation , and their attorney ' s fees from trust assets . § 736.0816 ( 15 ), ( 20 ), Fla . Stat . ( 2021 ). Trustees are " entitled to compensation that is reasonable under the circumstances ." § 736.0708 ( 1 ), Fla . Stat . ( 2021 ); see also § 736.05053 ( 4 ), Fla . Stat . ( 2021 ) ( providing that trust administration fees , including trustee fees and trustee ' s attorney ' s fees , should be paid before estate administration fees ). Trustees are also allowed reimbursement for reasonable trust expenses . § 736.0709 ( 1 ), Fla . Stat . ( 2021 ). Similarly , an attorney who provides " services to a trust may be awarded reasonable compensation from the trust " following an application for fees . § 736.1005 ( 1 ), Fla . Stat . ( 2021 ).
Lanford argues that a homestead willed to a trust is entitled to the same constitutional protections against claims from the trustee as it is to estate administration claims . He concedes , however , there is no legal authority supporting this argument , and he otherwise fails to explain why homestead protections should apply against the trustee . Instead , he suggests we rely on a per curiam affirmance without opinion case . Per curiam affirmances without opinion , however , have no precedential value because the reasons for affirmance are indeterminable . Hicks v . Am . Integrity Ins . of Fla ., 241 So . 3d 925 , 929 ( Fla . 5th DCA 2018 ). Accordingly , Lanford cannot demonstrate the probate court erred in awarding Phemister and her lawyers statutorily authorized fees and costs for administering the trust , including allowing reimbursement from homestead sale proceeds . We therefore affirm that portion of the probate court ' s order .”
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PBCBA BAR BULLETIN 16