What this section opens up
The court may review the propriety of the employment by a trustee of any person, including any attorney, auditor, investment adviser, or other specialized agent or assistant, and the reasonableness of any compensation paid to that person or to the trustee.
Section 736.0206(1), Florida Statutes.
Two things are reviewable, and they are separate. Whether the trustee should have hired the person at all, and whether what was paid was reasonable. A trustee can lose on the first without the rate being questioned.
Note who is covered. The section reaches any person the trustee employed, expressly including attorneys, auditors and investment advisers, and the trustee. Read that alongside section 736.0816(20), which permits a trustee to employ advisers who are the trustee or the trustee’s own affiliate. This section is where that arrangement gets examined.
This is also a different question from how compensation is measured. That is section 736.0708, where the Second District has held that reasonableness is decided on a multi factor test rather than by hours times a rate.
The burden is on the trustee
The burden of proof of the propriety of the employment and the reasonableness of the compensation shall be on the trustee and the person employed by the trustee. Any person who is determined to have received excessive compensation from a trust for services rendered may be ordered to make appropriate refunds.
Section 736.0206(3), Florida Statutes.
This is the most useful sentence on the page, and it reverses what most beneficiaries assume. A beneficiary does not have to prove that a fee was excessive. Once the review is under way, the trustee and the professional have to justify both the hiring and the amount.
That mirrors what the Fourth District has said about accountings, where a beneficiary makes a prima facie case simply by showing they are a beneficiary and received nothing, and the burden then sits with the trustee. See our page on section 736.08135.
And the second sentence supplies a remedy that reaches beyond the trustee. Any person determined to have received excessive compensation may be ordered to refund it, which includes the lawyers, accountants and advisers who were paid.
Who pays for the fight
Court proceedings to determine reasonable compensation of a trustee or any person employed by a trustee, if required, are a part of the trust administration process. The costs, including attorney’s fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the trust unless the court finds the compensation paid or requested to be substantially unreasonable.
Section 736.0206(4), Florida Statutes.
This is an unusual and rather elegant provision. A fee review is treated as part of the administration process, so the costs of the party carrying the burden, which is the trustee, come out of the trust. A trustee defending a defensible fee is not out of pocket.
Unless. If the court finds the compensation paid or requested was substantially unreasonable, that indemnity falls away. So the provision rewards a trustee who charged sensibly and penalises one who did not, without requiring a separate finding of breach.
Subsection (5) then removes a common obstacle. The court may determine reasonable compensation without expert testimony. Any party may offer an expert after notice, and if the testimony did not assist the court, the court need not order the trust to pay for it.
Six citations and none of them construes it
Our review found six documents citing this section, and the honest summary is that none interprets it.
The Second District held in 2018 that it did not apply to the case before it, noting in a footnote that it "relates to proceedings initiated to review the employment of agents and compensation of trustees and employees of a trust". In a 2024 Fourth District case the number appears only inside the court’s block quotation of section 736.0201(1), which lists this section as an exception, so the reference belongs to the statute being quoted rather than to this one.
The decision that actually proceeds under it is a 2014 Fourth District case about a surcharge sought against a trustee individually. It holds that a proceeding seeking a refund or surcharge against a fiduciary in their individual capacity is an adversary proceeding requiring formal notice under the Probate Rules, and that serving someone in a representative capacity does not give a court personal jurisdiction over them individually. That is a procedural holding about how such a proceeding must be brought rather than a construction of what the section requires.
So the questions this section actually raises are untested. What makes an employment improper as distinct from the fee unreasonable. What "substantially unreasonable" means in subsection (4), and how far below it a trustee can fall while keeping the indemnity. And whether a beneficiary who triggers a review that succeeds can recover their own costs, which subsection (4) does not address.