Probating a will can be an expensive process when the procedure involves contentious matters, such as will contests, determination of beneficiaries, etc. However, who bears the potentially great cost of such litigation? Does the estate have to pay? Is the estate always responsible for paying the attorney’s fees? Who decides from which part of the estate the fees and costs will be paid?
Under Florida law, costs may be awarded in all probate proceedings, so long as certain conditions are met by the individual bringing the action. See Fla. Stat. § 733.106(1). Also, pursuant to Fla. Stat. § 733.106(2), a personal representative “shall receive costs and attorney’s fees from the estate even though probate is denied or revoked,” as long as the personal representative is offering the will in due form for probate and is doing so in good faith. For fees or costs to be awarded by the court, the estate must have been benefited by the services of counsel or personal representative. See In re Freedman’s Estate, 340 So. 2d 1275 (Fla. 3d DCA 1977). An estate may benefit when an attorney or personal representative (1) brings about an enhancement in value or an increase in estate assets, or (2) brings an action which establishes and effectuates the decedent’s testamentary intent. Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009). A motion for payment of the costs of litigation involving probate must be made to the probate judge, and, if the judge finds that the executor, proponent, or contestant of the will acted in good faith and without fraud, or that the litigated question was vital to or beneficial to the estate, reasonable costs may be awarded. Id. In other words, the litigant need not succeed on every single claim or argument, but he or she must have brought an action in good faith that benefits the estate in some manner.
A probate judge has the ultimate discretion to award attorney’s fees and costs, even when the litigation does not result in a successful contest of the will. So, the attorney for the personal representative or other proponent may still be awarded attorney’s fees or costs for unsuccessfully nominating a will for probate under Florida Statute Section 733.106(2). However, only a judge in probate court has the jurisdiction and power to award such fees against the estate. In re Crosley’s Estate, 384 So. 2d 274 (Fla. 4th DCA 1980). This means that appellate judges do not have the discretion to rule on whether money should be taken out of the estate to pay for the litigant’s attorney’s fees and costs. In re Crosley’s Estate, 384 So. 2d 274 (Fla. 4th DCA 1980).
If you or someone you know has an issue regarding attorney’s fees in probate litigation or you would like to take appropriate action in a probate proceeding to obtain an award for attorney’s fees, it is important that you have experienced and knowledgeable representation. If you are in need of such representation, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with any estate planning needs you may have. Please feel free to contact us for an initial consultation.