In short: The beneficiaries lost. In Silveira v. Estate of Locascio, the son and his assignee spent over a decade seeking the mother’s estate, only to find about $1.6 million in fees and expenses exceeded what remained and an IRA had been spent. They challenged the fees pro se; the Third DCA affirmed without opinion in 2014.
The Facts
The Estate of Sylvia M. Locascio was administered in Miami-Dade circuit court beginning in 2001. Because the Third District affirmed without an opinion, what follows is what the record and the arguments showed, as described for the oral argument, not appellate findings.
The decedent died at the hands of her husband, who was later convicted. Her son, later joined by his aunt as assignee of his interest, spent more than a decade trying to receive the estate. By the time of final distribution, administration expenses and attorney and accountant fees totaling roughly $1.6 million exceeded what was left. An IRA that the appellants said should have passed outside probate had been spent along the way.
Representing themselves, the son and his aunt (appellants Edward J. Locascio and Ursula Silveira) challenged the fee awards and the distribution. They argued the fees were unreasonable given the size of the estate, questioned how expenses were prioritized, objected to the use of the IRA, and challenged the son’s removal as personal representative. The estate responded that the beneficiary’s own litigation, including more than 18 appeals, drove the costs.
The Decision
The panel (Judges Wells, Suarez and Lagoa) affirmed both appeals per curiam without opinion. The fee awards and the distribution stood. The court gave no reasons. It may have found the fees supported by the record, accepted that the beneficiary’s own litigation caused much of the expense, found objections not preserved, or found the pro se record inadequate for review.
A PCA is not precedent. It does not hold that fees exceeding an estate are reasonable, or that a non-probate IRA may be used to pay estate expenses.
The Law
Under section 733.6171, the personal representative’s attorney is entitled to reasonable compensation from the estate. The statute sets a presumed-reasonable fee schedule for ordinary services based on the estate’s value and allows more for extraordinary services, such as litigation. Interested persons may object, and the court decides what is reasonable. Under section 733.106, the court may also direct which beneficiary’s share bears fees, including charging a person whose conduct unjustly increased the cost.
When the estate cannot pay everything, section 733.707 sets the order: costs and expenses of administration, including attorney and personal representative fees, come first, ahead of funeral expenses, taxes and ordinary creditors. Beneficiaries take only what remains. Assets that pass by beneficiary designation, such as an IRA with a living named beneficiary, generally are not probate assets and are not subject to that priority. They become estate property only if the estate is the beneficiary or no beneficiary survives, so whether an IRA was properly used turns on its designation.
Current law (2026): Sections 733.6171, 733.106 and 733.707 confirmed on flsenate.gov 2026 Statutes; 733.106(4) now includes an enumerated list of factors for assessing fees against a person’s share (added after this 2014 decision).
Lessons
- In Florida, administration expenses and lawyers’ fees are paid first. Prolonged estate litigation can consume everything the heirs are fighting over.
- Object to fee petitions promptly and specifically, with evidence on hours, rates and necessity, and get a ruling.
- Check beneficiary designations on IRAs and other accounts early. A properly designated account should pass outside probate.
- Litigation conduct counts. A court can charge fees against the share of the person it finds drove up costs.
Source: Silveira v. Estate of Locascio, No. 3D12-3423 & 3D12-3424 — Fla. 3d DCA (January 22, 2014).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Lawyers' Fees Swallow the Estate? | Silveira v. Estate of Locascio, 3D12-3424 & 3D12-3423
Go Deeper
- How Much Does Probate Cost in Florida? The Statutory Fee Schedule, With the Math
- The Florida Probate Process Step by Step: What the Personal Representative Must Do
- Co-Personal Representatives Must Act Jointly (Rocca v. Rones)
Frequently Asked Questions
Can probate attorney fees exceed the value of the estate in Florida?
It can happen, especially in long, litigated estates. Fees for extraordinary services are not capped by the statutory schedule, and administration expenses are paid first under section 733.707. In Silveira v. Estate of Locascio, fees and expenses of about $1.6 million exceeded what remained, and the Third DCA affirmed without opinion.
Who gets paid first from a Florida estate?
Under section 733.707, costs and expenses of administration, including attorney and personal representative fees, come first. Then reasonable funeral expenses, certain debts and taxes, medical expenses of the last illness, and other creditor claims. Beneficiaries receive only what is left after those are paid.
Is an IRA part of a Florida probate estate?
Usually not. An IRA with a living named beneficiary passes directly to that person outside probate and generally is not used for estate expenses. It becomes a probate asset if the estate is the named beneficiary or no designated beneficiary survives. Check the designation form early.
What does a per curiam affirmance (PCA) mean in Florida?
It means the appellate court upheld the trial court’s judgment with the single word affirmed and no opinion. The losing side gets no explanation, the ruling below stands, and the decision is not precedent for any legal point. In Silveira v. Estate of Locascio, the PCA left the trial court’s result in place without endorsing any particular reason for it.
Talk to a Florida probate litigation lawyer
Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
