New Statutory Requirements for an Attorney Serving as Personal Representative or Trustee

The new changes to Fla. Stat. 733.617 of Florida’s Probate Code and Fla. Stat. 736.0708 of Florida’s Trust Code now require a written statement by the testator of a will or settlor of a trust, acknowledging that the attorney made certain disclosures to them before the will or trust was signed.  These changes became effective on October 1, 2020.

The new section in Fla Stat. 733.617(8), applicable to wills, provides:

(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)

The counterpart from Florida’s Trust Code, Fla. Stat. 736.0708(4), is nearly identical, and it provides:

(4)(a) An attorney serving as a trustee, or a person related to such attorney, is not entitled to compensation for serving as a trustee if the attorney prepared or supervised the execution of the trust instrument that appointed the attorney or person related to the attorney as trustee, unless the attorney or person appointed is related to the settlor or the attorney makes the following disclosures to the settlor before the trust instrument is executed:

1. Unless specifically disqualified by the terms of the trust instrument, any person, regardless of state of residence and including a family member, friend, or corporate fiduciary, is eligible to serve as a trustee;
2. Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee; and
3. Compensation payable to the trustee is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the trustee.

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

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 trustee in my trust instrument dated  (insert date)

Before executing the trust, I was informed that:

1. Unless specifically disqualified by the terms of the trust instrument, any person, regardless of state of residence and including family members, friends, and corporate fiduciaries, is eligible to serve as a trustee.
2. Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee.
3. Compensation payable to the trustee is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the trustee.

(Signature)
(Settlor)
(Insert date)

In short, if you wish for your attorney to serve as your fiduciary, attorneys are now statutorily required to make these disclosures, and as the testator or settlor, you are required to sign a written statement acknowledging same.  Should you have questions on these disclosures or consent requirements, please speak with your experienced estate planning lawyer.