Why are the legal fees for a ‘revocable trust’ based on the estate asset value if a ‘living trust’ is designed to avoid probate?

Asked about 2 years ago - Alexandria, VA

I was told that “a living trust” avoids probate because title to the various assets is transferred to the trust. Yet according to the 2010 Florida statutes on estates and trusts, chpt 733.6171, attorneys fees are compensated (without court order) on (a percentage basis of) the inventory value of the probated estate assets. But if the ‘living trust’ avoids probate, how can attorney’s fees be charged on the total estate assets? In the probate filing (Broward County) of the deceased, the lawyer stated that “The nature and approximate value of the assets in this estate are (Tangible personal Property) $ 1,000. I'm a trustee of a Florida 'revocable trust' and I can't understand why the attorney handling the probate is entitled to a ‘fixed fee’ based on the estate’s assets.

Attorney answers (3)

  1. James P. Frederick

    Contributor Level 20

    3

    Lawyers agree

    Answered . I am not a Florida attorney, but I think that you are mixing up the statutes. When you are talking about "estate assets", you are talking about probate. As you know, most trusts allow people to avoid probate. In many cases, it is possible to administer a trust with little or no attorney involvement.
    From what I understand, there IS no fee schedule for Trustee fees in Florida. Trustees are entitled to "reasonable compensation" for the services performed. This is not tied to a percentage of the assets of the trust, although the size of the trust will likely have a bearing on the services required.
    The applicable statute appears to be:
    736.0708 Compensation of trustee.—
    (1) If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances.
    (2) If the terms of a trust specify the trustee’s compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:
    (a) The duties of the trustee are substantially different from those contemplated when the trust was created; or
    (b) The compensation specified by the terms of the trust would be unreasonably low or high.
    (3) If the trustee has rendered other services in connection with the administration of the trust, the trustee shall also be allowed reasonable compensation for the other services rendered in addition to reasonable compensation as trustee.

    For more information on trustee fees, see here: http://www.florida-probate-lawyer.com/probate/t...

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and... more
  2. Joseph Franklin Pippen Jr.

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . Your question is confusing. First-the fees can be negoiated if you are the PR. The statutes offer guidelines for reasonable fees. Most attorneys charge the statutory recommended fee if not negotiated. Assets in a trust are not part of the probate estate and not part of the probate fee.
    Attorneys can be hired to administer the trust and the recommended fee for that is 2.25%.
    That fee can also be negotiated.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more
  3. C L Huddleston III

    Pro

    Contributor Level 16

    2

    Lawyers agree

    Answered . You ask why legal fees are based on assets. Sometimes they are and sometimes they aren't, depending on the agreement between the trustee or personal representative and the lawyer.

    There is logic to charging legal fees based on estate size. First, larger estates are usually more complicated than smaller estates: More assets, more types of assets, more complex planning documents, more claimants trying to get their piece of the pie, more complex tax returns, etc. Second, hourly billing has never been a good idea because clients don't understand why we need to charge $200 to $500 per hour for our services (lots of overhead), it takes time to keep time records and turn them into invoices and clients never believe how long it takes to do things. Third, we must carry expensive malpractice policies and the larger the estate is, the more likely it is that a mistake can be made that would require the attorney to file a malpractice claim with his or her insurance carrier.

    That being said, an estate with a single beneficiary and a million dollars in cash is much easier to administer than an estate half that size with multiple beneficiaries, a bunch of crappy real estate and a bunch of debt.

    Mr. Huddleston is an Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Columbus... more

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