The duty, and how it is triggered
A trustee of a trust described in s. 733.707(3) shall pay to the personal representative of a settlor’s estate any amounts that the personal representative certifies in writing to the trustee are required to pay the expenses of the administration and obligations of the settlor’s estate.
Section 736.05053(1), Florida Statutes.
Two features decide most disputes under this subsection. The trigger is a written certification from the personal representative, not a demand, a phone call or an invoice. And the obligation attaches only to a trust described in section 733.707(3), which is the probate provision making a revocable trust answerable where the estate itself is insufficient.
The subsection also settles who bears the cost internally. Payments made by the trustee, unless the trust instrument provides otherwise, must be charged as expenses of the trust without a contribution from anyone. Beneficiaries do not get chased individually for their share.
And the trust document cannot switch the duty off. Section 736.0105(2) lists the provisions the terms of a trust cannot override, and this duty is among them at paragraph (2)(m). A settlor can direct which funds are used, under subsection (2). A settlor cannot make the trust unreachable.
Which assets may be used, and which may not
The same subsection then limits the source of payment in a way that is easy to read past.
Payments must be made from assets, property or proceeds included in the settlor’s gross estate for federal estate tax purposes. That is a federal tax test doing work inside a state trust statute, and it means the answer to which assets are available depends on estate tax characterisation rather than on how the trust describes them.
Two categories are then put out of reach. Assets proscribed in section 733.707(3), and death benefits described in section 733.808(4). The second carries an escape hatch that is worth knowing about from both sides. Those death benefits become available only if the trust instrument expressly refers to section 733.808(4) and directs that it does not apply. That is a drafting decision somebody has to have made deliberately, by section number.
The order the trust pays in
Unless the settlor provided otherwise by will or by designating funds in the trust, subsection (2) fixes the sequence.
(a) Property of the residue of the trust remaining after all distributions that are to be satisfied by reference to a specific property or type of property, fund, or sum.
(b) Property that is not to be distributed from specified or identified property or a specified or identified item of property.
(c) Property that is to be distributed from specified or identified property or a specified or identified item of property.
Section 736.05053(2), Florida Statutes.
This is an abatement waterfall and it runs the way probate lawyers expect. The residue absorbs the cost first, then general dispositions, and specific gifts last. A beneficiary taking a named asset is better protected than a beneficiary taking a share of what is left.
Subsection (3) then deals with what happens when that is not enough, including a contribution mechanism. Where a specifically identified item is sold or taken to meet the burden, the other beneficiaries must contribute according to their respective interests to the beneficiary whose property went, and the trustee works out and withholds those amounts before distributing.
What gets paid before any of it
This is the provision practitioners cite most, and it is the reason a trustee facing a demand from an estate does not simply pay it first.
The trustee shall pay the expenses of trust administration, including compensation of trustees and attorneys of the trustees, before and in preference to the expenses of the administration and obligations of the settlor’s estate.
Section 736.05053(4), Florida Statutes.
Before and in preference to. The trust’s own running costs, including what the trustee is paid and what the trustee’s lawyers are paid, rank ahead of the estate’s administration expenses and the settlor’s obligations.
The Fifth District noted that priority while deciding a dispute about which assets could pay whose fees.
Trustees are ‘entitled to compensation that is reasonable under the circumstances.’ § 736.0708(1), Fla. Stat. (2021); see also § 736.05053(4), Fla. Stat. (2021) (providing that trust administration fees, including trustee fees and trustee’s attorney’s fees, should be paid before estate administration fees).
Lanford v. Phemister, No. 5D21-1015 (Fla. 5th DCA Apr. 8, 2022). The opinion carries the legend “NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED” and no reporter citation had issued.
That is the only Florida decision our review located citing this section, and it cites it in passing rather than construing it. The case itself turned on whether homestead sale proceeds could pay fees, and drew a sharp line between fees incurred as trustee and fees incurred as personal representative. Our page on trustee compensation covers it.
So the working questions here are unanswered in Florida. What a personal representative’s certification must contain to be effective. Whether a trustee may question the amounts certified or must simply pay. How the gross estate limitation is applied where a trust holds assets of mixed character. And whether subsection (4) lets a trustee run up administration costs ahead of an estate that will consequently go unpaid.