Who Can Be Paid, and For What
Subsection (1) contains both the entitlement and the procedure.
(1) Any attorney who has rendered services to a trust may be awarded reasonable compensation from the trust. The attorney may apply to the court for an order awarding attorney fees and, after notice and service on the trustee and all beneficiaries entitled to an accounting under s. 736.0813, the court shall enter an order on the fee application.
Note who the section is written for. It is the attorney who applies, in their own right, for compensation out of the trust. It is not a prevailing party provision and it does not depend on anyone having done anything wrong.
The section is deliberately parallel to the probate provision for services to an estate, and a Florida court noted the two side by side in 2025, quoting each in turn to show they use the same formula.
The Test Is Benefit to the Trust
The word carrying the section is to. Services rendered to a trust, not services rendered in a matter that involves one.
Florida’s Fourth District put the condition plainly in 2012, having quoted this section and the trustee’s fee provision.
We hold that if the trial court finds that counsel for appellant benefitted the trust, not just his client, through his representation, Jervis is entitled to attorneys' fees, pursuant to Florida Statutes.
Jervis v. Tucker, 82 So. 3d 126 (Fla. 4th DCA 2012).
That sentence is the practical test and it is worth applying honestly before an application is made. A beneficiary who extracts a better deal for himself has not benefited the trust. A beneficiary whose litigation removed a trustee who was damaging it, or established the correct construction of an ambiguous instrument, quite possibly has.
The Second District added a jurisdictional point in 2017. Because the probate court had assumed jurisdiction over the trust and the underlying dispute about its trustee, the statute was applicable and could have provided a basis for the fees, and the trial court had been wrong to conclude there was no statutory basis at all. The same court expressly declined to say whether an award would ultimately be proper.
The Notice Trap That Can Sink an Application
Read the second sentence of subsection (1) again. The attorney may apply, and after notice and service on the trustee and all beneficiaries entitled to an accounting, the court shall enter an order.
When does that notice have to happen? Florida’s Second District called the sentence awkwardly crafted and answered the question.
Reading this statute's sentence as a whole, in pari materia, we hold that an applicant for attorney's fees under section 736.1005 must serve an application for attorney's fees to the parties identified in the statute contemporaneously with the filing of the application with the court.
Bloom v. Bloom, 227 So. 3d 165 (Fla. 2d DCA 2017).
Contemporaneously with filing. Not before the hearing, not before the order. The same day.
That is a rule that costs nothing to comply with and can be expensive to have missed, and it is the single most practical thing on this page for anyone about to make an application.
Whose Share of the Trust Pays
Subsection (2) is about allocation, and it was rewritten in 2015. If fees are to be paid from the trust, the court may direct which part of the trust pays, and may assess all or part of them against one or more persons’ parts of the trust in such proportions as it finds just and proper.
It then lists seven factors a court may weigh. The relative impact of an assessment on each person’s share. The amount to be assessed. The extent to which the person, individually or through counsel, actively participated. The potential benefit or detriment to their share from the outcome. The relative strength or weakness of their claims, defences or objections. Whether they were a prevailing party. And whether they unjustly caused an increase in the fees incurred by the trustee or another person.
Those factors are worth reading if you are a beneficiary deciding how hard to fight. Several of them are about your conduct, not the merits, and the last one is aimed squarely at a party running up everyone else’s costs.
The parallel costs provision, section 736.1006, now imports the same factors.
The Districts Disagree About Appellate Fees
This is live and it matters if you are on appeal.
In February 2023 Florida’s Fifth District granted a motion for appellate fees under this section.
Appellant's motion for an award of appellate attorney's fees, which is based upon Florida Rules of Appellate Procedure 9.300(a) and 9.400(b), and section 736.1005, Florida Statutes (2022), is granted, and we remand that matter for the trial court to determine the amount of such reasonable fees.
In re Trust of Adean E. Wines, No. 5D22-1919 (Fla. 5th DCA Feb. 3, 2023).
In April 2025 Florida’s Sixth District took a different route.
We agree with the Fourth District, however, that we do not have jurisdiction to award appellate attorney's fees from a trust under Section 736.1005.
The court below has exclusive jurisdiction pursuant to the statute to award attorney's fees from the trust.
Kersey v. Abraham, No. 6D2023-1927 (Fla. 6th DCA Apr. 17, 2025).
Three things should temper how that is read, and we would rather set them out than sell you a clean conflict.
Neither decision certified conflict with the other. The Fifth District’s order granted entitlement and sent the amount to the trial court, which is arguably consistent with the Sixth District’s point that the court below has exclusive jurisdiction to award fees from the trust. And the Sixth District was only created in 2023, from territory that included the Fifth’s, so this is not a long standing division of authority but two recent decisions taking different paths.
What it means practically is that a motion for appellate fees under this section may be met with a jurisdictional objection, and the safer course is to preserve the claim below as well.
One Place the Trust Can Pay When an Estate Cannot
A useful distinction from 2022. Florida’s Fifth District held that a person serving both as personal representative and as testamentary trustee could not have her personal representative fees reimbursed from homestead sale proceeds, because of the constitutional homestead protection, but that her fees as trustee, including her attorneys under this section, could be paid from those proceeds.
Similarly, an attorney who provides "services to a trust may be awarded reasonable compensation from the trust" following an application for fees. § 736.1005(1), Fla. Stat. (2021).
Lanford v. Phemister, No. 5D21-1015 (Fla. 5th DCA Apr. 8, 2022).
The homestead had passed to the trust’s beneficiary free of estate claims, but the trustee could still be paid from trust assets. Where homestead is in the picture, which capacity the person was acting in changes the answer.
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 nine records. We read all of them.
Two of those records turned out to be the same decision, a 2015 Fourth District case appearing twice in the database, once as the slip opinion and once after its reporter citation issued. That decision quotes this section and its neighbours at length but does not construe any of them; it was decided on whether a party had waived an objection to how the fee basis was pleaded. Two cautions follow from it. The fee subsections it quotes are the pre-2015 text, so they are not what the statute says now, and its reporter record contains a digit transposition in an unrelated citation.
A 2025 Third District decision cites the section only as a comparator to the probate fee statute, in a case about an attorney’s standing to reopen a probate.
So the section is applied often and construed rarely. The notice holding and the benefit-to-the-trust condition are the two real pieces of Florida authority on it, and the appellate fee question is unsettled.
A section-number search does not find decisions that discuss a provision without naming it, and we have not run a citator pass.
Frequently Asked Questions
Can an Attorney Be Paid From a Florida Trust?
Yes, if the services were rendered to the trust. Section 736.1005(1) says any attorney who has rendered services to a trust may be awarded reasonable compensation from the trust, and that the attorney may apply to the court for an order, which the court shall enter after notice and service on the trustee and all beneficiaries entitled to an accounting. The critical word is to. Work done for a client that happens to involve a trust is not the same as work that benefited the trust.
What Is the Test for Fees Under Section 736.1005?
Benefit to the trust itself. Florida s Fourth District put the condition directly in 2012, holding that if the trial court finds counsel for the appellant benefitted the trust, not just his client, through his representation, then the client is entitled to attorney s fees. That framing is the practical test. A beneficiary who wins a personal advantage has not necessarily benefited the trust; a beneficiary who removes a trustee who was harming it may well have.
When Must the Fee Application Be Served?
At the same time it is filed, and this has caught practitioners out. In 2017 Florida s Second District examined the notice sentence, described it as awkwardly crafted, and held that an applicant for fees under section 736.1005 must serve the application on the parties identified in the statute contemporaneously with filing it with the court. So serving it later, even before the judge rules, is not what the statute requires on that reading. If you are applying under this section, calendar the service for the day of filing.
Can Fees Be Charged Against One Beneficiary s Share?
Yes. Subsection (2) lets the court direct which part of the trust pays, and to assess all or part of the fees against one or more persons parts of the trust in whatever proportions the court finds just and proper. It then lists seven factors the court may consider, including the relative impact of an assessment on each person s share, the extent to which a person actively participated, the potential benefit or detriment to their share, the relative strength of their claims or objections, whether they prevailed, and whether they unjustly caused an increase in the fees incurred by the trustee or another person. Those factors came in with the 2015 amendment.
Can an Appellate Court Award Fees From a Trust?
This is genuinely unsettled in Florida right now. In 2023 the Fifth District granted a motion for appellate attorney s fees under this section and remanded for the trial court to determine the amount. In 2025 the Sixth District said it did not have jurisdiction to award appellate attorney s fees from a trust under the section, agreeing with the Fourth District, and said the court below has exclusive jurisdiction to award fees from the trust. Neither decision certified conflict. There is a way to read them together, since the Fifth District also sent the amount to the trial court, but if you are seeking appellate fees the answer may depend on which district you are in.
What Is the Difference Between 736.1005, 736.1004 and 736.1007?
They answer different questions. Section 736.1005 is for an attorney whose services benefited the trust. Section 736.1004 is for fees in actions for breach of fiduciary duty or challenging a trustee s exercise of powers. Section 736.1007 is the trustee s own attorney s fees in trust administration, and it provides that where a trustee of a revocable trust retains an attorney for the initial administration, the attorney is entitled to reasonable compensation. A fourth, section 736.1006, covers costs. Getting the right one matters, because a fee claim pleaded under the wrong provision can fail on that ground alone.
Can a Trustee Be Paid From Homestead Sale Proceeds?
There is a useful distinction here. In 2022 Florida s Fifth District held that a personal representative could not be reimbursed her fees and costs from homestead sale proceeds, because of Florida s constitutional homestead protection, but that her fees as testamentary trustee, including her attorneys under section 736.1005(1), could be paid from those same proceeds. The homestead had passed to the trust s beneficiary free of estate claims, but the trustee may still be paid from trust assets. If homestead is in the picture, which hat the person was wearing changes the answer.
Common Situations
The lawyer who fixed the trust. A beneficiary’s counsel establishes the correct construction of an ambiguous instrument, which benefits everyone with an interest in it. That is the paradigm case for this section, and the application should be served the day it is filed.
The application served late. Counsel files the fee application and serves the trustee and beneficiaries a week later, before any hearing. Under the Second District’s reading that is not contemporaneous, and it is an avoidable problem.
The beneficiary who fought everything. A beneficiary objects to every step and the fees mount. Two of the seven factors in subsection (2) point directly at that, namely the extent of active participation and whether the person unjustly caused an increase in fees. A court can put the bill on that share.
Sources of Law
- Fla. Stat. §736.1005 (attorney fees for services to the trust, covering subsection (1) entitlement and the notice and service requirement; subsection (2) direction of which part of the trust pays, assessment against particular persons’ parts, and the seven factors). Official text, Online Sunshine, subsection (1) quoted in full above. History: s. 10, ch. 2006-217; s. 7, ch. 2015-27, which added the factors. (retrieved 2026-08-13)
- Bloom v. Bloom, 227 So. 3d 165 (Fla. 2d DCA May 24, 2017), No. 2D16-2985, Lucas, J. Quoted above for the holding that service must be contemporaneous with filing, applying the 2015 text. Source caveat: the online rendering of this opinion carries several character-level scanning errors elsewhere in its text, including a party name; the quoted passages are clean. Source: CourtListener. (retrieved 2026-08-13)
- Jervis v. Tucker, 82 So. 3d 126 (Fla. 4th DCA Feb. 8, 2012), No. 4D10-392, Polen, J. Quoted above for the benefit-to-the-trust condition, applying the 2011 text. Source caveat: the online rendering breaks a word across a page marker in the quoted sentence; that artifact has been closed in the quotation and the fact is recorded in our corpus. (retrieved 2026-08-13)
- In re Trust of Adean E. Wines, No. 5D22-1919 (Fla. 5th DCA Feb. 3, 2023), Edwards, J., and Kersey v. Abraham, No. 6D2023-1927 (Fla. 6th DCA Apr. 17, 2025), per curiam. Both quoted above on appellate fees. Reading note: neither decision certifies conflict with the other; the Fifth District remanded the amount to the trial court, which is capable of being read consistently with the Sixth District’s jurisdictional point; and the Sixth District was created in 2023 from territory including the Fifth’s. Neither had a Southern Reporter citation when this page was prepared and both carry not-final legends. (retrieved 2026-08-13)
- Lanford v. Phemister, No. 5D21-1015 (Fla. 5th DCA Apr. 8, 2022), Traver, J. Quoted above on payment from homestead sale proceeds in the trustee capacity. No Southern Reporter citation had issued when this page was prepared; not-final legend present. A prior appeal in the same litigation is reported at 280 So. 3d 79 (Fla. 5th DCA 2019) and was not retrieved. (retrieved 2026-08-13)
- Van Vechten v. Anyzeski, 157 So. 3d 350 (Fla. 4th DCA Jan. 21, 2015), Nos. 4D13-2980 and 4D13-3520, Gerber, J. Referred to above without quotation of its statutory passages. Reading note: this decision appears twice in CourtListener, once as the slip opinion and once after its reporter citation issued; they are the same decision, not two. It quotes sections 736.1005, 736.1006 and 736.1007 but construes none of them, deciding instead that an objection to the pleading of a fee basis had been waived by pretrial stipulation. Its quotations of the fee subsections are the pre-2015 text and do not state the current statute, which is why none of them is reproduced here. Its reporter record also contains a digit transposition in an unrelated statutory citation. (retrieved 2026-08-13)
- Valentino v. Estate of Andollo, No. 3D24-1558 (Fla. 3d DCA Apr. 30, 2025), Gooden, J., which cites section 736.1005(1) only as a comparator to the probate fee provision in a case about an attorney’s standing to reopen a probate. Not relied on. (retrieved 2026-08-13)
- Gap note, stated for the record: nine Florida records cite this section and all were read, comprising eight distinct decisions. The question whether an appellate court may award fees from a trust under this section is currently answered differently by different districts, and no decision we located certifies conflict. A section-number search does not find decisions that discuss a provision without naming it, and no citator pass was run.
- 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 other editorial layer of a commercial research service. Where an online rendering contains a character-level extraction error, this page says so and does not rely on the affected text.
- Nothing on this page predicts a result. Whether fees may be paid from a trust depends on whether the services benefited the trust and on the court’s exercise of discretion.
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. Which fee provision applies, and whose share pays, depends on the proceeding and the benefit, which we review at a free consult. Please do not send confidential details until we have connected.
