The 2023 Florida Statutes (including Special Session C)

Title XLII
ESTATES AND TRUSTS

Chapter 733
PROBATE CODE: ADMINISTRATION OF ESTATES

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F.S. 733.617

733.617 Compensation of personal representative.—

(1) A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.

(2) A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:

(a) At the rate of 3 percent for the first $1 million.

(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.

(d) At the rate of 1.5 percent for all above $10 million.

(3) In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:

(a) The sale of real or personal property.

(b) The conduct of litigation on behalf of or against the estate.

(d) The carrying on of the decedent’s business.

(e) Dealing with protected homestead.

(f) Any other special services which may be necessary for the personal representative to perform.

(4) If the will provides that a personal representative’s compensation shall be based upon specific criteria, other than a general reference to commissions allowed by law or words of similar import, including, but not limited to, rates, amounts, commissions, or reference to the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import, then a personal representative shall be entitled to compensation in accordance with that provision. However, except for references in the will to the personal representative’s regularly published schedule of fees in effect at the decedent’s date of death, or words of similar import, if there is no written contract with the decedent regarding compensation, a personal representative may renounce the provisions contained in the will and be entitled to compensation under this section. A personal representative may also renounce the right to all or any part of the compensation.

(5) If the probate estate’s compensable value is $100,000 or more, and there are two representatives, each personal representative is entitled to the full commission allowed to a sole personal representative. If there are more than two personal representatives and the probate estate’s compensable value is $100,000 or more, the compensation to which two would be entitled must be apportioned among the personal representatives. The basis for apportionment shall be one full commission allowed to the personal representative who has possession of and primary responsibility for administration of the assets and one full commission among the remaining personal representatives according to the services rendered by each of them respectively. If the probate estate’s compensable value is less than $100,000 and there is more than one personal representative, then one full commission must be apportioned among the personal representatives according to the services rendered by each of them respectively.

(6) Except as otherwise provided in this section, if the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.

(7) Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;

(b) The responsibilities assumed by and the potential liabilities of the personal representative;

(d) The benefits or detriments resulting to the estate or interested persons from the personal representative’s services;

(e) The complexity or simplicity of the administration and the novelty of the issues presented;

(f) The personal representative’s participation in tax planning for the estate and the estate’s beneficiaries and in tax return preparation, review, or approval;

(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;

(h) Any delay in payment of the compensation after the services were furnished; and

(i) Any other relevant factors.

(8)(a) An attorney serving as a personal representative, or a person related to the attorney, is not entitled to compensation for serving as a personal representative if the attorney prepared or supervised the execution of the will that nominated the attorney or person related to the attorney as personal representative, unless the attorney or person nominated is related to the testator, or the attorney makes the following disclosures to the testator before the will is executed:

1. Subject to certain statutory limitations, most family members, regardless of their residence, and any other persons who are residents of Florida, including friends and corporate fiduciaries, are eligible to serve as a personal representative;

2. Any person, including an attorney, who serves as a personal representative is entitled to receive reasonable compensation for serving as a personal representative; and

3. Compensation payable to the personal representative is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the personal representative.

(b)1. The testator must execute a written statement acknowledging that the disclosures required under paragraph (a) were made prior to the execution of the will. The written statement must be in a separate writing from the will but may be annexed to the will. The written statement may be executed before or after the execution of the will in which the attorney or related person is nominated as the personal representative.

2. The written statement must be in substantially the following form:

I, (Name) , declare that:

I have designated my attorney, an attorney employed in the same law firm as my attorney, or a person related to my attorney as a nominated personal representative in my will or codicil dated (insert date) .

Before executing the will or codicil, I was informed that:

1. Subject to certain statutory limitations, most family members, regardless of their residence, and any other individuals who are residents of Florida, including friends and corporate fiduciaries, are eligible to serve as a personal representative.

2. Any person, including an attorney, who serves as a personal representative is entitled to receive reasonable compensation for serving as a personal representative.

3. Compensation payable to the personal representative is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the personal representative.

(Signature)

(Testator)

(Insert date)

1. An attorney is deemed to have prepared or supervised the execution of a will if the preparation or supervision of the execution of the will was performed by an employee or attorney employed by the same firm as the attorney at the time the will was executed.

2. A person is “related” to an individual if, at the time the attorney prepared or supervised the execution of the will, the person is:

a. A spouse of the individual;

b. A lineal ascendant or descendant of the individual;

c. A sibling of the individual;

d. A relative of the individual or of the individual’s spouse with whom the attorney maintains a close, familial relationship;

e. A spouse of a person described in sub-subparagraphs b.-d.;

f. A person who cohabitates with the individual; or

g. An employee or attorney employed by the same firm as the attorney at the time the will is executed.

3. An attorney or a person related to the attorney is deemed to have been nominated in the will when the will nominates the attorney or the person related to the attorney as personal representative, copersonal representative, successor, or alternate personal representative in the event another person nominated is unable to or unwilling to serve, or provides the attorney or any person related to the attorney with the power to nominate the personal representative and the attorney or person related to the attorney was nominated using that power.

(d) Other than compensation payable to the personal representative, this subsection does not limit any rights or remedies that any interested person may have at law or in equity.

(e) The failure to obtain an acknowledgment from the testator under this subsection does not disqualify a personal representative from serving and does not affect the validity of a will.

(f) This subsection applies to all nominations made pursuant to a will:

1. Executed by a resident of this state on or after October 1, 2020; or

2. Republished by a resident of this state on or after October 1, 2020, if the republished will nominates the attorney who prepared or supervised the execution of the instrument that republished the will, or a person related to such attorney, as personal representative.

History.—s. 1, ch. 74-106; s. 80, ch. 75-220; s. 1, ch. 76-172; s. 5, ch. 88-340; s. 1, ch. 90-129; s. 10, ch. 93-257; s. 1, ch. 95-401; s. 141, ch. 2001-226; s. 109, ch. 2002-1; s. 8, ch. 2020-67.

Note.—Created from former s. 734.01.

F.S. 733.617 on Google Scholar

F.S. 733.617 on Casetext

Amendments to 733.617

Arrestable Offenses / Crimes under Fla. Stat. 733.617

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 733.617.

Annotations, Discussions, Cases:

Cases from cite.case.law:

UNITED STATES v. F. SPOOR, P. TRUSTEE OF LOUISE PAXTON GALLAGHER REVOCABLE TRUST, LLC,, 838 F.3d 1197 (11th Cir. 2016)

. . . . § 733.617(1), and “[a] trustee is entitled to be reimbursed out of the trust property ... for reasonable . . .

SIMMONS, v. ESTATE OF Dr. S. BARANOWITZ, 189 So. 3d 819 (Fla. Dist. Ct. App. 2015)

. . . See §§ 733.617(1) & 733.6171(3), Fla. . . .

In AMENDMENTS TO THE FLORIDA PROBATE RULES, 964 So. 2d 140 (Fla. 2007)

. . . . § 733.617, Fla. Stat. Compensation of personal representative. § 733.6171, Fla. Stat. . . .

J. COOPER L. v. FORD SINCLAIR, P. A., 888 So. 2d 683 (Fla. Dist. Ct. App. 2004)

. . . Section 733.617, Florida Statutes, provides for compensation to the P.R. for ordinary services. . . . In contrast, section 733.617 provides that “[t]he commission shall be based on the compensable value . . .

ANGELUS, v. I. PASS,, 868 So. 2d 571 (Fla. Dist. Ct. App. 2004)

. . . renounce the will’s compensation provisions by electing to be compensated for services under Section 733.617 . . .

AMENDMENTS TO THE FLORIDA PROBATE RULES, 848 So. 2d 1069 (Fla. 2003)

. . . . § 733.617, Fla. Stat. Compensation of personal representative. § 733.6171, Fla. Stat. . . .

VENIS, v. GREENSPAN,, 833 So. 2d 208 (Fla. Dist. Ct. App. 2002)

. . . and counsel both sought fees based on the sliding scale percentage fee rate provided for in sections 733.617 . . . The court’s decision to award fees based on the sliding scales provided in section 733.617 for the P.R . . .

MARVIN AND KAY LICHTMAN FOUNDATION, v. In ESTATE OF LICHTMAN,, 773 So. 2d 1232 (Fla. Dist. Ct. App. 2000)

. . . The Foundation contended that this award is improper and argued that section 733.617(5) violates the . . . See § 733.617(7)Fla. Stat. (1999). . . . Subsection 733.617(5) provides: If the probate estate’s value as defined in subsection (1) is $100,000 . . . personal representatives according to the services rendered by each of them respectively. .Subsection 733.617 . . .

In ESTATE OF WINSTON, v., 755 So. 2d 690 (Fla. Dist. Ct. App. 1999)

. . . Both parties agree the relevant statute is section 733.617, Florida Statutes (1985). . . . trial court reflected the court’s weighing of evidence addressing the factors contained in section 733.617 . . . Section 733.617(1), Florida Statutes (1985) provides: (1) Personal representatives, attorneys, accountants . . . (g) The experience, reputation, diligence, and ability of the person performing the services. § 733.617 . . .

TEAGUE, v. ESTATE OF D. HOSKINS,, 709 So. 2d 1373 (Fla. 1998)

. . . See § 733.617(7), Fla. . . .

BITTERMAN, v. BITTERMAN, BITTERMAN, v. H. WEIDENBENNER,, 714 So. 2d 356 (Fla. 1998)

. . . conflict between Bitterman and the Williams College cases arises out of the application of section 733.617 . . . for both personal representatives and attorneys for personal representatives was covered by section 733.617 . . . created a new section, after which the compensation for personal representatives was covered by section 733.617 . . . that the administration of Bitterman’s estate was covered by 733.6171 (the 1993 amendment) rather than 733.617 . . . Ward advances several arguments in support of the award of Roby’s fees, but the application of section 733.617 . . .

WILLIAMS, v. STATE, 711 So. 2d 41 (Fla. Dist. Ct. App. 1998)

. . . . §§ 733.602, 733.603, 733.607, 733.608, 733.612, and 733.617, Fla. Stat. (1997). . . .

ZEPEDA Jo v. B. KLEIN,, 698 So. 2d 329 (Fla. Dist. Ct. App. 1997)

. . . Platt involved the application of section 733.617, Florida Statutes (1989), which provided that an attorney . . .

In ESTATE OF C. GOOD, FIRST OF AMERICA BANK- CENTRAL, v. SITOMER,, 696 So. 2d 876 (Fla. Dist. Ct. App. 1997)

. . . In so concluding, we do not reach the question of whether section 733.617, Florida Statutes (Supp.1990 . . .

AMENDMENTS TO FLORIDA PROBATE RULES, 683 So. 2d 78 (Fla. 1996)

. . . . § 733.617, Fla.Stat. . . .

BITTERMAN v. BITTERMAN, BITTERMAN v. H. WEIDENBENNER, O, 685 So. 2d 861 (Fla. Dist. Ct. App. 1996)

. . . . ■ The first matter in dispute is whether section 733.617, Florida Statutes (1991), or section 733.6171 . . . In 1993, the Legislature amended section 733.617, Florida Statutes (1991). . . . What remained after the amendment was section 733.617, which applies to compensation of personal representatives . . . the holding of In re Estate of Duval, 174 So.2d 580 (Fla. 2d DCA 1965) and the application of section 733.617 . . .

COLLEGE, v. A. BOURNE,, 670 So. 2d 1118 (Fla. Dist. Ct. App. 1996)

. . . Ward advances several arguments in support of the award of Roby’s fees, but the application of section 733.617 . . .

N. JONES, v. J. DUNNING,, 661 So. 2d 941 (Fla. Dist. Ct. App. 1995)

. . . personal representatives and lawyers seeking fees, should follow the guidelines set out in section 733.617 . . .

THE FLORIDA BAR, v. GARLAND,, 651 So. 2d 1182 (Fla. 1995)

. . . We agree with Garland that in light of sections 733.617 and 733.6171, Florida Statutes (1993), which . . . Although sections 733.617 and 733.6171 did not became effective until after the Locke estate was closed . . . personal representative, Garland would be entitled to at least three percent of the $590,000 estate. § 733.617 . . .

In ESTATE OF GRAY. KRATZ, v. GRAY,, 626 So. 2d 971 (Fla. Dist. Ct. App. 1993)

. . . regarding the reasonableness of appellee’s fees, taking into account the criteria established in section 733.617 . . .

In ESTATE OF PLATT,, 586 So. 2d 328 (Fla. 1991)

. . . not applicable to the determination of attorney’s fees and personal representative fees under section 733.617 . . . Factors to be considered by a trial judge were added to section 733.617 in 1975. . . . In 1976, this statute was amended to read as follows: 733.617 Compensation of personal representatives . . . Section 733.617(l)(e), Florida Statutes (1989), now reads: “The nature and value of the assets of the . . . Patterson next argues that the clause in section 733.617(1) which reads that “[reasonable compensation . . .

PHIPPS, v. ESTATE BURDINE,, 586 So. 2d 381 (Fla. Dist. Ct. App. 1991)

. . . Section 733.617, Fla.Stat. (1987). . . . Sections 733.617(l)(a), (c) and (d), Fla.Stat. (1987). . . . Section 733.617(l)(f), Fla.Stat. (1987). . . . 472 So.2d 1145 (Fla.1985) need not be applied in the determination of attorney’s fees under section 733.617 . . . SHARP, JJ., concur. . 733.617 Compensation of personal representatives and professionals.— (1) Personal . . .

MOYLE, Jr. M. M. F. Jr. A. v. MOSCHELL MOSCHELL, E. N. A., 582 So. 2d 111 (Fla. Dist. Ct. App. 1991)

. . . In Platt, the Florida Supreme Court held that under section 733.617(1) “trial judges were required to . . . under review here was based upon all of the factors enumerated in the probate fee statute, section 733.617 . . . Section 733.617(1) provides that reasonable compensation for personal representatives and their attorneys . . .

In ESTATE OF P. BRYAN,, 576 So. 2d 344 (Fla. Dist. Ct. App. 1991)

. . . a personal representative and the professionals it hires, the trial court is controlled by section 733.617 . . . Section 733.617, Florida Statutes (1987) provides as follows: (1)Personal representatives, attorneys, . . .

In ESTATE OF L. JOHNSON, Jr., 566 So. 2d 1345 (Fla. Dist. Ct. App. 1990)

. . . Section 733.617 (1987), Florida Statutes, governs the assessment of fees in this probate estate. . . .

B. BOCK, v. DIENER,, 571 So. 2d 30 (Fla. Dist. Ct. App. 1990)

. . . the fact, however, the beneficiaries contend that Diener can receive no fee, arguing that subsection 733.617 . . . While subsection 733.617(3) provides specific authority for compensation of Florida Bar members, it does . . . The thrust of sections 733.106 and 733.617, Florida Statutes, is to provide for the employment and compensation . . . of such professionals as may be needed in connection with probate, and we interpret subsection 733.617 . . . Subsection 733.617 provides: (1) Personal representatives, attorneys, accountants, and appraisers and . . .

In ESTATE OF LANE,, 562 So. 2d 352 (Fla. Dist. Ct. App. 1990)

. . . The court determined, applying either the factors set forth in section 733.617, Florida Statutes (1987 . . . Section 733.617, Florida Statutes (1987), provides the criteria for determination of reasonable compensation . . . authorize the personal representative to hire attorneys and to litigate on behalf of an estate) and section 733.617 . . .

In ESTATE OF PLATT,, 546 So. 2d 1114 (Fla. Dist. Ct. App. 1989)

. . . not applicable to the determination of attorney’s fees and personal representative fees under section 733.617 . . . Section 733.617, Florida Statutes (1987), provides that reasonable compensation shall be based upon " . . . The title to that act states as follows: An Act relating to the Florida Probate Code: amending § 733.617 . . .

In ESTATE OF S. WARWICK,, 543 So. 2d 449 (Fla. Dist. Ct. App. 1989)

. . . SCA Services of Florida, Inc., 488 So.2d 873 (Fla. 1st DCA 1986); § 733.617, Fla.Stat. (1987). . . .

IN RE ESTATE OF JEAN BLOCKER PROCTOR,, 23 Fla. Supp. 2d 40 (Fla. Cir. Ct. 1987)

. . . Pressly, Jr. as expert witness is true; and the court having reviewed in depth Florida Statutes Section 733.617 . . . , is not applicable to this situation because there is a specific statute, Florida Statutes Section 733.617 . . .

In ESTATE OF GOODWIN, Sr., 511 So. 2d 609 (Fla. Dist. Ct. App. 1987)

. . . . § 733.617, Fla.Stat. (1981). Id. at 798. (footnote omitted). . . .

IN RE ESTATE OF LEACH, 23 Fla. Supp. 2d 125 (Fla. Cir. Ct. 1986)

. . . made by the Petitioner to evaluate his attorney’s fees on the basis of the criteria set forth in F.S. 733.617 . . . counsel attempted to go down the list and assess a value to each one of the criteria listed in F.S. 733.617 . . . The Court finds that based upon Rowe and Florida Statutes 733.617, that the reasonable services articulated . . .

In ESTATE OF CORDINER. DOUGHERTY, v. P. EVANS,, 497 So. 2d 920 (Fla. Dist. Ct. App. 1986)

. . . administration of an estate that an expert witness, through consideration of the factors set forth in section 733.617 . . .

UNIVERSITY OF FLORIDA FOUNDATION, INC. v. E. MILLER,, 478 So. 2d 482 (Fla. Dist. Ct. App. 1985)

. . . compensation at $1,200 per year, and permitting him instead to claim compensation pursuant to Section 733.617 . . . At issue before us is the lower court’s construction of section 733.617(2), stating: If a will provides . . . We have found no cases in Florida construing Section 733.617(2), Florida Statutes; nevertheless we do . . . Similarly, a fair reading of Section 733.617(2), Florida Statutes, conveys the meaning that if a personal . . . There is no provision contained in section 733.617(2) as to a specific time for renunciation, and in . . .

J. GOLDWORN P. A. v. ESTATE OF B. DAY,, 452 So. 2d 659 (Fla. Dist. Ct. App. 1984)

. . . Section 733.617, Florida Statutes (Supp.1976), the controlling statute, relates to compensation of personal . . .

Dr. SCHREIBER, v. PALMER,, 427 So. 2d 235 (Fla. Dist. Ct. App. 1983)

. . . On our consideration of the record, and an application of Section 733.617, Florida Statutes (1979) (the . . .

B. SHEFFIELD, v. DALLAS,, 417 So. 2d 796 (Fla. Dist. Ct. App. 1982)

. . . Section 733.617, Florida Statutes (1981), provides as follows: Compensation of personal representatives . . .

In ESTATE OF SIMON, Dr. SCHREIBER, v. R. PALMER,, 402 So. 2d 26 (Fla. Dist. Ct. App. 1981)

. . . instructions to compensate appellee for his services at a rate to be determined as provided in Section 733.617 . . .

In ESTATE E. BEEMAN,, 391 So. 2d 276 (Fla. Dist. Ct. App. 1980)

. . . aside and that the new award was based upon quantum meruit and upon the criteria established by Section 733.617 . . .

THE FLORIDA BAR. In FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE, 387 So. 2d 949 (Fla. 1980)

. . . This rule is intended to fully comply with the provision of section 733.617, Florida Statutes (1975). . . .

BECK, a k a v. BECK, a k a R., 383 So. 2d 268 (Fla. Dist. Ct. App. 1980)

. . . . § 733.617, Fla.Stat. (1977). . . .

In ESTATE A. STERLINE, BOROUGH OF LEWISBERRY, v. P. ADAIR,, 380 So. 2d 1315 (Fla. Dist. Ct. App. 1980)

. . . DuVal, 174 So.2d 580, 589 (Fla.2d DCA 1965); In re Estate of Dean, 144 So.2d 65 (Fla.2d DCA 1962); § 733.617 . . .

THE FLORIDA BAR. In SUPPLEMENTAL PETITION FOR CHANGES IN FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE, 344 So. 2d 828 (Fla. 1977)

. . . This rule is intended to fully comply with the provision of Section 733.617, Florida Statutes (1975). . . .

In ESTATE M. WYLIE,, 342 So. 2d 996 (Fla. Dist. Ct. App. 1977)

. . . Section 733.617, Florida Statutes, effective 1975, alleviates the fee aspect as a problem in the probate . . .