Whether you’ve realized it or not, attorneys can administer estates and trusts executed in Florida. This follows a change made to Florida statutes in October 2020 that enables attorneys – or a person related to them – to serve as a personal representative of a will or trust if disclosures were made to the testator or settlor before the document was signed.
These changes came into effect on October 1, 2020 and updated the section in Fla. Stat. 733.617 of Florida’s Probate Code and Fla. Stat. 736.0708 of Florida’s Trust Code.
Both sections now require the testator of a will or settlor of a trust to submit a written statement conveying that they have elected their attorney, an attorney employed in the same firm as their attorney, or a person related to their attorney, as the personal representative or trustee in their respective will or trust.
How these changes impact the execution of wills:
There are two scenarios by which attorneys or individuals related to them, pursuant to Fla. Stat. 733.617(8), can serve as the personal representative of a testator.
- The attorney, or nominated person related to attorney, as personal representative is related to the testator.
- The attorney, or nominated person related to attorney, conveys the following disclosures to the testator before the will is executed:
- 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.
- Any person, including an attorney, who serves as a personal representative is entitled to receive reasonable compensation for serving as a personal representative.
- 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.
If the testator does in fact decide to elect their attorney, an attorney employed in the same law firm as their attorney, or person related to their attorney, then the testator must submit a written statement to the Court acknowledging that the relevant disclosures explained above were shared before the will was executed.
This written statement must be separate from the will but may be annexed to the will itself. It must be in 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:
- 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.
- Any person, including an attorney, who serves as a personal representative is entitled to receive reasonable compensation for serving as a personal representative.
- 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) __
How these changes impact the execution of trusts:
The statute changes made to the Fla. Stat. 736.0708 of Florida’s Trust Code are nearly identical in terms of the requirements imposed upon the testator of a will. Similarly, there are two scenarios by which attorneys or individuals related to them can serve as a trustee.
- The attorney, or nominated person related to the attorney, appointed as trustee is related to the settlor.
- The attorney, or nominated person related to the attorney, appointed as trustee conveys the following disclosures to the settlor before the trust is executed:
- 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.
- Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee.
- 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) __
__ (Testator) __
__ (Insert date) __
If the settlor does in fact decide to elect their attorney, an attorney employed at the same law firm as their attorney, or a person related to my attorney as a trustee, then the settlor must submit a written statement to the Court acknowledging that the relevant disclosures shared above were, in fact, disclosed before the trust was executed.
This written statement must be separate from the trust but may be annexed to the trust itself. It must be in 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:
- 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.
- Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee.
- 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) __
__ (Testator) __
__ (Insert Date) __
Conclusion:
Individuals executing a will or trust in Florida are now able to elect their attorneys as a personal representative or trustee, if such attorneys convey a few disclosures regarding the arrangement. To effectively appoint an attorney as one’s fiduciary, testators or settlors are required to sign a written statement acknowledging that such disclosures were made before the will or trust was signed.
Reach out to Mendez & Mendez Law to speak with experienced attorneys about your estate situation. Our attorneys are eager to review these disclosures with you and answer your questions as you make important decisions impacting your estate planning.
