What Section 736.1004 Says
The section is two subsections. The first says when fees are on the table. The second says whose money they come from.
(1)(a) In all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee's powers; and
(b) In proceedings arising under ss. 736.0410-736.0417, the court shall award taxable costs as in chancery actions, including attorney fees and guardian ad litem fees.
(2) When awarding taxable costs under this section, including attorney fees and guardian ad litem fees, the court, in its discretion, may direct payment from a party's interest, if any, in the trust or enter a judgment that may be satisfied from other property of the party, or both.
Two phrases carry most of the weight. "As in chancery actions" in subsection (1), and "or enter a judgment that may be satisfied from other property of the party" in subsection (2). The rest of this page is largely about those.
Why This Is Not a Loser Pays Statute
In ordinary civil litigation a fee statute usually points at a prevailing party. This one points at the practice of the old courts of equity, and Florida's Fifth District explained the consequence in 2015 while reversing a fee award.
Section 736.1004, Florida Statutes (2008), requires a trial court to award attorneys' fees and other costs "as in chancery actions."
Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015).
And then the court set out what that permits.
Under the chancery rule, a trial court may "apportion the costs between the parties, or require all costs be paid by the prevailing party."
Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015).
So the judge has a real choice, and the exercise is an equitable one. That cuts both ways. A beneficiary who wins on the merits is not guaranteed their fees. A trustee who loses is not automatically paying for both sides.
The case itself shows how an award can come undone. The trial court had ordered $85,005.50 in fees against the beneficiaries on the footing that they had presented no evidence for their claims. The appeal reversed the merits ruling underneath it, and the fee award went with it.
Although we find that the equities of the instant case do not favor any award in favor of Badger, the trial court did not specifically base its award on equitable considerations.
Because our ruling necessarily invalidates the trial court's finding as to the sufficiency of Appellants' evidence, the award of attorneys' fees in favor of Badger was an abuse of discretion.
Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015).
The court sent it back for a reasonable apportionment of the parties' attorney's fees. The lesson for anyone arguing about fees is that an order which explains its equitable reasoning is much harder to disturb than one which simply follows the merits.
Fees Out of Your Share, or Out of Your Pocket
Subsection (2) is where trust fee litigation stops resembling ordinary litigation. A court may direct payment from a party's interest in the trust, or enter a judgment satisfiable from other property of the party, or both.
Taking it from your share of the trust is the outcome most beneficiaries expect. The second option is the one that catches people. It is a money judgment, enforceable against whatever you own.
In 2012 Florida's Third District affirmed exactly that against trustees. The court described the ruling below this way.
found that the Co-Trustees in this breach of trust action were jointly and severally liable to the Beneficiary for attorney's fees and costs pursuant to sections 737.627, and 736.1004, Florida Statutes (2011).
Jacobson v. Sklaire, 92 So. 3d 228 (Fla. 3d DCA 2012).
The co-trustees had paid their own attorney's fees out of trust funds without court approval, leaving the trust unable to satisfy the beneficiary's judgment. The result was personal liability, jointly and severally. That is a risk a trustee should understand before deciding to fund a defence from the trust, and it connects directly to the notice procedure further down this page.
One point of legal history from the same opinion, useful if you are reading older cases or an older trust file. The predecessor provision was section 737.627, and the court recorded what happened to it.
§ 737.627, Repealed by Laws 2006, c.2006-217, which related to costs and attorneys' fees, was derived from Laws 1993, c. 93-257, § 16 and Laws 2003, c.2003-154, § 19. See, now, Fla. Stat. § 736.1004.
Jacobson v. Sklaire, 92 So. 3d 228 (Fla. 3d DCA 2012), n.2.
What the Section Does Not Cover
Two decisions draw the edges, and both are worth knowing before a complaint is filed.
It does not reach a contract claim. In 2011 Florida's Fourth District reversed a fee award where the litigation, though it involved trust parties, was really about enforcing a settlement agreement.
The underlying proceedings were brought to enforce a contract, not a trust, and did not involve the trust code.
Thus, the trust code cannot serve as a basis to support the fee award.
Bright v. Baltzell, 65 So. 3d 90 (Fla. 4th DCA 2011).
The court did not reach any other question about the fee claim, because the statute did not apply in the first place. What matters is the nature of the action, not the identity of the parties.
It does not fund a losing fee theory. In 2019 the Fifth District held that a party who won fees under this section could not also recover the hours spent on an unsuccessful alternative fee motion.
Because section 736.1004 does not expressly authorize recovery of attorney's fees for time spent litigating an alternative and unsuccessful ground for fees, Appellee may not recover the hours for the time spent litigating the entitlement to fees for the unsuccessful section 57.105 motion.
Levine v. Stimmel, 272 So. 3d 847 (Fla. 5th DCA 2019).
The same opinion is blunt about who carries the burden of sorting this out.
As the party seeking attorney's fees pursuant to section 736.1004, Appellee had the burden to demonstrate what portion of the attorneys' efforts were expended on claims for which section 736.1004 authorized attorney's fees.
Levine v. Stimmel, 272 So. 3d 847 (Fla. 5th DCA 2019).
In practice that means the time records have to separate the theories while the work is being done. Reconstructing the split afterwards is harder and less persuasive.
The Four Other Fee Sections, and Which One You Need
Most people who arrive at section 736.1004 actually need one of its neighbours. They answer different questions.
- Section 736.1004 is fees in actions for breach of fiduciary duty, or challenging a trustee's exercise or non-exercise of powers.
- Section 736.1005 is fees for an attorney who has rendered services to the trust itself.
- Section 736.1006 is costs in trust proceedings.
- Section 736.1007 is the trustee's attorney fees in ordinary trust administration.
Their amendment histories differ, and that matters if someone has told you the law changed. Sections 736.1005 and 736.1006 were amended in 2015. Section 736.1007 has been amended three times. Section 736.1004 has never been amended since the Trust Code took effect on July 1, 2007, so a case decided in 2011 is construing the same words as a case decided today.
There is also a jurisdictional trap on appeal. In 2021 the Fourth District said of a request for appellate fees under the services-to-the-trust section.
Bruce also requested attorney's fees on appeal pursuant to section 736.1005. We do not have jurisdiction to award fees against the trust pursuant to that provision.
Bronstein v. Estate of Bronstein, No. 4D20-2661 (Fla. 4th DCA Dec. 22, 2021).
When the Trustee Pays Its Own Lawyer From the Trust
This is the situation most beneficiaries actually find themselves in, and the governing provision is not this section. It is section 736.0802(10), inside the duty of loyalty.
The starting point is the duty itself, as the Fourth District stated it in 2021.
Section 736.0802(1), Florida Statutes (2019), provides that "[a]s between a trustee and the beneficiaries, a trustee shall administer the trust solely in the interests of the beneficiaries."
Bronstein v. Estate of Bronstein, No. 4D20-2661 (Fla. 4th DCA Dec. 22, 2021).
The same opinion recorded the beneficiaries' right to push back.
While a trustee may pay from the trust costs and attorney's fees incurred in any proceeding the beneficiaries may contest those fees and costs. See § 736.0802(10), Fla. Stat (2019).
Bronstein v. Estate of Bronstein, No. 4D20-2661 (Fla. 4th DCA Dec. 22, 2021).
Contesting them can work. In 2014 the Third District upheld both halves of a trial court's response where co-trustees had skipped the notice the subsection requires, prohibiting further payment of fees from the trust and ordering a refund of fees already paid. Our page on the duty of loyalty covers that mechanism in detail.
One practical note. Section 736.0802(10) is triggered by a breach of trust claim or defence raised in a filed pleading. A letter from a beneficiary's lawyer does not start it.
What We Found and What We Did Not
On August 13, 2026 we searched Florida state and federal decisions for this section number, restricted to Florida courts, and found six cases. We read all six.
Two of them do most of the work, the 2015 Fifth District decision on chancery apportionment and the 2019 Fifth District decision on fees for a failed alternative theory. One draws the outer limit, the 2011 Fourth District contract case. One affirms personal liability, the 2012 Third District case.
The remaining two barely engage with the section. A 2024 Fourth District opinion mentions it once, describing its own earlier mandate, and decides a question about expert witness fees instead. And in the 2021 Fourth District case the section appears only in a separate opinion concurring in part and dissenting in part, which is not the decision of the court and is not authority. We have not treated it as any.
Two of the six carry the standard legend that they are not final until a timely motion for rehearing is disposed of, and neither had a Southern Reporter citation when this page was prepared.
We did not run a citator pass, and a section-number search does not find decisions that discuss a provision without naming it. So this is a careful review on a stated date, not a guarantee that nothing else exists.
Frequently Asked Questions
Who Pays Attorney Fees in a Florida Trust Dispute?
It depends on what the judge decides is equitable, which is different from ordinary litigation. Section 736.1004 applies in all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee's powers, and it directs the court to award taxable costs including attorney fees as in chancery actions. Florida's Fifth District explained what that phrase does. Under the chancery rule a trial court may apportion the costs between the parties, or require all costs be paid by the prevailing party. So the court has a genuine choice, and winning does not automatically mean someone else pays your lawyer.
Can a Court Order Trust Fees to Be Paid From My Share?
Yes. Subsection (2) says that when awarding taxable costs under the section, including attorney fees and guardian ad litem fees, the court in its discretion may direct payment from a party's interest, if any, in the trust or enter a judgment that may be satisfied from other property of the party, or both. That last phrase is the one to notice. The court can go past the trust and into your own assets, and it can do both at once. In a 2012 Third District case co-trustees who paid their own attorney's fees out of trust funds without court approval, leaving too little to satisfy the beneficiary's judgment, were held jointly and severally personally liable.
Does Section 736.1004 Apply if My Case Is About a Settlement Agreement?
Probably not, and a Florida court has said so. In a 2011 Fourth District case a party sought fees under the Trust Code after litigation between trust parties, and the court held the statute did not authorise it because the underlying proceedings were brought to enforce a contract, not a trust, and did not involve the trust code. The court did not even reach the question of whether the fee claim had been properly pleaded, because the statute did not reach the case at all. So the test is what the action actually is, not who the parties happen to be.
Can I Recover the Cost of Arguing About Fees?
Not for a theory that fails. In a 2019 Fifth District case a party won fees under section 736.1004(1)(a) but had also run an unsuccessful motion under section 57.105. The court held that because section 736.1004 does not expressly authorise recovery of attorney's fees for time spent litigating an alternative and unsuccessful ground for fees, those hours could not be recovered. The same opinion puts the burden squarely on the party asking. As the party seeking fees, they had to demonstrate what portion of the attorneys' efforts were expended on claims for which the section authorised fees. Practically, that means time records need to separate the theories from the start.
What Is the Difference Between 736.1004, 736.1005, 736.1006 and 736.1007?
They answer different questions and mixing them up is the most common error on this topic. Section 736.1004 covers fees in actions for breach of fiduciary duty or challenging a trustee's exercise of powers. Section 736.1005 covers an attorney who has rendered services to the trust. Section 736.1006 covers costs in trust proceedings. Section 736.1007 covers the trustee's attorney fees in trust administration. Their histories differ too. Sections 736.1005 and 736.1006 were amended in 2015 and 736.1007 has been amended three times, while section 736.1004 has never been amended since the Trust Code took effect on July 1, 2007. If you have been told a 2015 change affects your fee claim, check which section is actually in play.
Can a Trustee Use Trust Money to Defend Itself?
Up to a point, and there is a procedure. A separate provision, section 736.0802(10), governs a trustee paying its own attorney's fees from trust assets once a breach of trust is alleged in a filed pleading. Florida's Fourth District has noted that while a trustee may pay from the trust costs and attorney's fees incurred in any proceeding, the beneficiaries may contest those fees and costs. A Third District decision went further and approved both the prohibition of further payments and a refund of fees already paid, where the co-trustees had not given the notice the subsection requires. If you are a beneficiary who has just seen a trustee retain counsel at the trust's expense, that is the provision to read.
Is an Attorney Fee Award in a Trust Case Hard to Overturn?
It is reviewed for abuse of discretion, but that is not the same as untouchable. In 2015 Florida's Fifth District reversed an award of $85,005.50 because the trial court had based it on a finding that the appellants presented absolutely no evidence in support of their claims, and the appellate ruling on the merits invalidated that finding. The court noted the trial court had not specifically based its award on equitable considerations, and remanded for a reasonable apportionment of the parties' attorney's fees. So a fee award tied to a merits ruling can fall with it, and an award that does not show its equitable reasoning is more vulnerable than one that does.
Common Situations
The beneficiary watching the trust pay for its own defence. A son in Tampa sues the trustee and then learns the trustee has hired counsel and is paying from the trust, which is his own inheritance. The provision he needs is section 736.0802(10), not this one, and the first question is whether the trustee gave the notice it requires once the claim was filed. If it did not, both a prohibition on further payments and a refund are on the table.
The trustee deciding whether to fight. A daughter serving as trustee is accused of mismanagement and wants to defend herself using trust funds. She should know two things before she does. There is a notice procedure that starts when a breach claim appears in a filed pleading, and a court can enter a fee judgment satisfiable from her own property rather than from the trust.
The fee award that followed the merits. A trial court finds a beneficiary's claims meritless and awards the trustee its fees. On appeal the merits ruling is reversed. The fee award is now sitting on a finding that no longer exists, which is very close to what happened in the 2015 Fifth District case, and the award did not survive.
Sources of Law
- Fla. Stat. §736.1004 (attorney's fees and costs: subsection (1) when they are available and the direction to award them as in chancery actions; subsection (2) payment from a party's interest in the trust, a judgment satisfiable from other property, or both). Official text, Online Sunshine. History: s. 10, ch. 2006-217. The section has not been amended since the Florida Trust Code took effect on July 1, 2007. (retrieved 2026-08-13)
- Neighbouring fee provisions from the same official source: §736.1005 (attorney fees for services to the trust; amended by ch. 2015-27); §736.1006 (costs in trust proceedings; amended by ch. 2015-27); §736.1007 (trustee's attorney fees); §736.0802 (duty of loyalty, including subsection (10) on a trustee paying fees from trust assets after a breach claim is filed). (retrieved 2026-08-13)
- Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA July 24, 2015), No. 5D14-1145 and No. 5D14-3469, Wallis, J.; issued on motion for clarification, substituting a withdrawn opinion; rehearing denied August 11, 2015. Quoted above for the chancery standard, the apportionment rule, and the reversal of the fee award. Source caveat: CourtListener's docket sidebar renders the first docket as "5B14-1145"; a Fifth District docket carries the 5D prefix, so that is an extraction artifact and is not reproduced here. Source: CourtListener. (retrieved 2026-08-13)
- Levine v. Stimmel, 272 So. 3d 847 (Fla. 5th DCA May 17, 2019), No. 5D17-2572, Wallis, J. Quoted above for the burden on the party seeking fees and for the refusal of fees spent on an unsuccessful alternative ground. Source: CourtListener. (retrieved 2026-08-13)
- Bright v. Baltzell, 65 So. 3d 90 (Fla. 4th DCA June 22, 2011), No. 4D10-878 and No. 4D10-1729, per curiam. Quoted above for the holding that the Trust Code does not support a fee award where the action enforced a contract. Source caveat: one sentence in CourtListener's rendering reads "7S6.1004", with a letter S in place of the numeral 3. That is an extraction artifact rather than the court's error, so it carries no [sic] and that sentence is not quoted on this page. Source: CourtListener. (retrieved 2026-08-13)
- Jacobson v. Sklaire, 92 So. 3d 228 (Fla. 3d DCA April 25, 2012), No. 3D09-1528, Suarez, J. Quoted above from the majority opinion only, for the joint and several liability of the co-trustees and for the note on the repealed predecessor statute. Reading note: the discussion of personal liability under subsection (2) appears in a separate concurring opinion and is disputed in a dissent. Neither is the decision of the court, neither is quoted here, and the concurrence's rendering of the statutory text differs from the statute. Source: CourtListener. (retrieved 2026-08-13)
- Bronstein v. Estate of Bronstein, No. 4D20-2661 (Fla. 4th DCA Dec. 22, 2021), Warner, J. Quoted above only from the majority, and only for section 736.0802 and the appellate jurisdiction point under section 736.1005. Reading note: the majority does not cite section 736.1004 at all. That section appears in this case only in a separate opinion concurring in part and dissenting in part, which is not authority and is not relied on here. The opinion carries the legend that it is not final until disposition of a timely filed motion for rehearing, and no Southern Reporter citation had issued when this page was prepared. Source: CourtListener. (retrieved 2026-08-13)
- Echeverria v. Trombino, No. 4D2023-0739 (Fla. 4th DCA Mar. 20, 2024), Forst, J. Referred to above without quotation of its section 736.1004 sentence, which recounts the court's own earlier mandate in Trombino v. Echeverria, 348 So. 3d 1150 (Fla. 4th DCA 2022). We did not retrieve the 2022 opinion, so nothing on this page characterises it. The 2024 decision turns on section 92.231 and expert witness fees. It carries the not-final legend and had no Southern Reporter citation when this page was prepared. (retrieved 2026-08-13)
- Gap note, stated for the record: six Florida decisions cite this section and all six were read. No citator pass was run, and a section-number search does not find decisions that discuss a provision without naming it, so the absence of a negative-treatment note is not a clean bill of health.
- Quotation note: the passages above reproduce the courts' own published words and the Legislature's own statutory text. Nothing is drawn from a headnote, case summary, or any other editorial layer of a commercial research service. Where an online rendering of an opinion contains a character-level extraction error, this page says so and does not quote the affected sentence.
- The decisions on this page are published rulings in other parties' cases, not matters handled by this firm. Fee outcomes depend on the equities, the trust, and the record in each case, and nothing here predicts a result.
Updated on August 13, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and published court decisions, not legal advice, and no attorney-client relationship is created. Who pays fees in a particular trust dispute depends on the equities and the record, which we review at a free consult. Please do not send confidential details until we have connected.
