The Duffey Law Firm Blog

Wednesday, October 11, 2017

Does a petition filed under Fla. Stat. 736.1005 require notice to all qualified beneficiaries?

In re Guardianship of Bloom, No. 2D16-2985, 2017 WL 2270124 (Fla. 2nd DCA May 24, 2017), after a lengthy period of litigation involving the guardianship, the estate, and the trust of the decedent, the decedent’s nephew filed for recovery of his attorney’s fees pursuant to Fla. 736.1005. The Second District Court of Appeals noted the ambiguities regarding the notice requirements under the fee recovery statute and clarified that all interested parties must be served with notice of the fee request simultaneously with the filing of the request with the court. 

Leon Bloom executed a trust in 1988 naming his wife, Dorothy Bloom, as a secondary beneficiary and appointing Robert Johnson as the trustee. In 2015, Leon’s nephew, Marshall Bloom, was appointed as a temporary guardian. Leon passed later in 2015 while his guardianship proceeding was still pending. At the time of Leon’s death, Dorothy had an unresolved claim in the guardianship proceeding requesting reimbursement from Leon’s funds for payments she personally expended to care for Leon. After Leon’s death, Marshall, as Personal Representative substituted the guardianship proceeding to continue challenging Dorothy’s claim. The successor Trustee of Leon’s trust unsuccessfully moved to have the motion for substitution quashed. Thereafter, Marshall had the successor Trustee removed and replaced with an independent Trustee.

Marshall, as an interested party, then filed a request for payment of his attorney’s fees from the Trust for the successful removal of the successor Trustee. The trial court rejected his request.

On objection, the Second District Court of Appeals remanded the case to the trial court to determine if Marshall had “rendered services to a trust” as required under Fla. Stat. 736.1005. Marshall, however had not served the petition for fees upon the qualified trust beneficiaries. The Second District focused on the ambiguity of Fla. Stat. 736.1005 with respect to notice, and held that notice of a petition for fees must be provided to the parties simultaneously with the filing of the petition with the court.

The Takeaway?

The Second District made clear potential ambiguities in Fla. Stat. 736.1005, which requires that notice of a petition for fees be provided to all parties and qualified trust beneficiaries. 

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