In short: In Florida breach-of-trust cases, the court must award taxable costs including attorney fees and may charge them against a party’s share of the trust (§ 736.1004). A trustee can pay its own defense lawyers from the trust, but must first serve a notice of intent, and beneficiaries can ask the court to stop or reverse it (§ 736.0802(10)).
In trust litigation, the money being fought over is often the same money paying the trustee’s lawyers. That is the first thing beneficiaries need to understand, and the first thing to attack when it is abused.
The Fee Statute for Breach Cases
"In all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee’s powers … the court shall award taxable costs as in chancery actions, including attorney fees and guardian ad litem fees." (§ 736.1004(1))
The court, in its discretion, may direct payment from a party’s interest in the trust, or enter a judgment that can be satisfied from the party’s other property, or both (§ 736.1004(2)). In plain terms: a losing party’s own share can be used to pay the other side.
The Trustee Paying Its Own Lawyers From the Trust
A trustee can generally pay attorney fees from trust assets without court approval. But once a breach-of-trust claim is made in a filed pleading, the trustee "must serve a written notice of intent upon each qualified beneficiary of the trust whose share of the trust may be affected by the payment before such payment is made" (§ 736.0802(10)(b)).
The notice must tell beneficiaries they can apply to the court for an order prohibiting the trustee from using trust assets to pay the fees, or compelling their return. If you are a beneficiary and you get that notice, read it the day it arrives.
Lawyers Who Benefit the Trust
Any attorney who has rendered services to a trust may be awarded reasonable compensation from the trust, on application and notice to the trustee and beneficiaries (§ 736.1005). The court can assess those fees against particular beneficiaries’ shares, considering factors like who actively participated and the strength of each side’s positions (§ 736.1005(2)).
Penalty Clauses Don’t Work
"A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable." (§ 736.1108(1))
What counts as a "penalty" is litigated. The lead video is an argument over a trust that required a beneficiary to post a $200,000 bond before challenging a trustee’s purchase. Is that a penalty, or just protection for fees?
Before You Sue
- Know whether the trust itself has fee provisions.
- Calculate what your share can absorb if you lose.
- Watch for the § 736.0802(10) notice and act on it.
- Document every request for information. Refusals to account often drive the fee award.
Watch: the videos behind this article
Is a $200K Trust Litigation Bond an Illegal Penalty Clause? | Fla. Stat. §736.1108
The Biggest Trust Mistake People Make
Watch the Real Appellate Arguments
These are recordings of actual Florida appellate oral arguments over fees in trust cases, posted on the channel. An argument is not a ruling: read the written opinion, and check whether later cases changed the law, before relying on any outcome.
Breach of Trust Attorney Fees Explained | Florida Probate & Trust Litigation Case
Denied Fees on the First Appeal — Does Law of the Case Bar the Trustee Forever?
Florida Homestead Trust Battle: Can Trustee Fees Be Paid? | Lanford v. Phemister
Brief of Fiduciary Duty
Go Deeper
- What Can I Actually Do If My Florida Trustee Is Stealing or Mismanaging the Trust?
- Can a Florida Trustee Use Trust Money for Themselves? The Duty of Loyalty Under § 736.0802
- Florida Trustee Duties and Beneficiary Rights
Frequently Asked Questions
Who pays attorney fees in a Florida trust lawsuit?
In breach of fiduciary duty cases, the court must award taxable costs including attorney fees, and may direct payment from a party’s interest in the trust or enter a judgment against the party (§ 736.1004).
Can a trustee use trust money to pay its lawyers?
Generally yes, but once a breach-of-trust claim is filed, the trustee must first serve a notice of intent on affected qualified beneficiaries, who can ask the court to prohibit the payment or order the money returned (§ 736.0802(10)).
Are no-contest clauses enforceable in Florida trusts?
No. Section 736.1108 makes a trust provision penalizing a beneficiary for contesting the trust or bringing proceedings about trust assets unenforceable.
Can my share of the trust be used to pay the other side’s fees?
It can. Under §§ 736.1004(2) and 736.1005(2), the court has discretion to assess fees against a particular beneficiary’s share.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a trust litigation lawyer for a trust fee dispute, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the Florida Trust Code (Chapter 736) and the full Florida Probate Code and Probate Rules 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.
