IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

J. SCOTT LANFORD, TRUSTEE OF

THE KIRK FAMILY FOUNDATION,

Appellant,

v. Case No. 5D21-1015

 LT Case No. 05-2017-CP-027176-X

ROBIN PHEMISTER, PERSONAL

REPRESENTATIVE OF THE ESTATE

OF MARY L. DILLARD AND AS TRUSTEE

OF THE TESTAMENTARY TRUST OF

MARY L. DILLARD,

Appellee.

________________________________/

Opinion filed April 8, 2022

Appeal from the Circuit Court 

for Brevard County,

David E. Silverman, Judge.

Robert C. Wilkins, Jr., of Robert C. Wilkins,

Jr., P.L., Orlando, for Appellant.

Scott Krasny, of Krasny and Dettmer,

Melbourne, for Appellee.
2

TRAVER, J.

J. Scott Lanford, trustee of the Kirk Family Foundation Charitable Trust 

(“Lanford”), appeals the probate court’s final order authorizing 

reimbursement from the sale of the homestead property of Mary Lee Dillard 

(“Decedent”). We have jurisdiction. See Fla. R. App. P. 9.170(b)(21), (23). 

The probate court awarded Robin Phemister and her attorneys their

reasonable fees and costs incurred while Phemister performed two discrete 

functions: 1) administering Decedent’s estate as personal representative; 

and 2) acting as trustee to the testamentary trust Decedent created in her 

will.

1

It also awarded Decedent’s estate expenses Phemister advanced to 

maintain the homestead after Decedent died.2 Because Florida’s

constitutional homestead protections forbid it, the probate court erred by 

authorizing reimbursement of Phemister’s personal representative fees and 

costs from the homestead sale proceeds. The probate court correctly 

1 A property transfer is “testamentary” when the property owner had no 

intention of making a transfer during her lifetime. See Restatement (Third) 

of Trusts § 17 cmt. a (2003). A “testamentary trust” is created by will and 

must satisfy the formalities required to execute a will. Id.; see also §

736.0401(1), Fla. Stat. (2016). Therefore, a testamentary trust is created if 

the property owner only intends to transfer the property to a trust after death. 

See Restatement (Third) of Trusts § 17 cmt. a (2003). 

2 We affirm without further discussion this portion of the probate court’s 

order.
3

determined, however, that Phemister and her lawyers could be reimbursed 

from the sale proceeds for fees and costs incurred on the testamentary 

trust’s behalf. Finally, Lanford does not meet his appellate burden to show 

these fees and costs were unreasonable. We therefore affirm in part and

reverse in part. 

I. Background

Decedent died in 2016, leaving certain personal property to her sister, 

Billie Jo Schell. She left the residuary of her estate,

3

including her 

homestead, to a testamentary trust. Schell was the testamentary trust’s 

primary beneficiary and the Kirk Family Foundation Charitable Trust (“Kirk 

Trust”) was the testamentary trust’s contingent remainder beneficiary.4 

Although Decedent’s will designated Lanford as her personal representative 

3 A residuary estate is “[t]he part of a decedent’s estate remaining after 

payment of all debts, expenses, statutory claims, taxes, and testamentary 

gifts (special, general, and demonstrative) have been made.” Residuary 

estate, Black’s Law Dictionary (11th ed. 2019). Accordingly, the 

testamentary trust was Decedent’s residual beneficiary. A residuary 

beneficiary is a devisee of all assets remaining after the estate’s obligations 

are satisfied. § 731.201(2), (35), Fla. Stat. (2016).

4 A contingent remainder is a future interest arising in a third party who 

is intended to take after a condition precedent. Contingent remainder,

Black’s Law Dictionary (11th ed. 2019). Decedent’s will provided that “upon 

the death of [Schell] or if [Schell] shall not survive me, then my entire 

residuary estate shall be paid over to [the Kirk Trust].” 
4

and the testamentary trust’s trustee, the probate court appointed Phemister 

to both these roles.5

In separate final orders, the probate court determined Decedent’s 

home constituted exempt homestead property, and that constitutional 

homestead protections inured to Phemister, as testamentary trustee, for 

Schell’s benefit. Nobody appealed either final order. See Fla. R. App. P. 

9.170(b)(12)–(13). The probate court thereafter authorized Phemister, as 

testamentary trust trustee, to sell the homestead property. Lanford and 

Phemister stipulated that the sale would occur, and Phemister would place 

the sale proceeds in escrow. The property later sold. 

In 2018, Schell died, and the residuary of Decedent’s estate passed to 

the Kirk Trust. Phemister thereafter petitioned the probate court to disburse 

the homestead property’s sale proceeds to pay for her fees as personal 

representative, her fees as testamentary trustee, and her attorney’s fees and 

costs incurred in both capacities. She later filed two amendments to this 

petition. Lanford objected, contending that homestead sale proceeds could 

5

In appointing Phemister, the probate court concluded that Lanford 

had a conflict of interest that prevented him from serving as Decedent’s 

personal representative or the testamentary trust’s trustee. Lanford did not 

appeal the probate court’s order appointing Phemister as personal 

representative, and we affirmed the probate court’s order appointing her as 

testamentary trustee. See Lanford v. Phemister, 280 So. 3d 79, 79 (Fla. 5th 

DCA 2019).
5

not be used for these purposes. He also argued the amounts Phemister and 

her attorneys sought were categorically unreasonable. He contended, for 

example, that Phemister did not distinguish between the work she and her 

attorneys performed for Decedent’s estate and the testamentary trust. The 

probate court conducted an evidentiary hearing on the amended petitions, at 

which it heard testimony on the necessity and reasonableness of the fees 

incurred. The hearing transcript is not part of our record. 

Following the hearing, the probate court issued an order reflecting that 

the parties agreed to the hourly rates of Phemister’s lawyers. It also directed

Lanford to submit objections to Phemister and her attorney’s fees, “either by 

timeline or line item entries, as to the necessity or reasonableness of the line 

items . . . .” Lanford did not comply with this directive. 

The probate court granted Phemister’s amended petitions. It awarded 

reimbursement of Phemister’s and her attorney’s fees and costs. The 

probate court’s order did not, however, differentiate between fees and costs 

incurred by the estate and the trust. To the extent Decedent’s estate had 

insufficient funds, the probate court authorized payment to Phemister and 

her lawyers from the escrowed homestead sale proceeds. The parties agree

Decedent’s estate cannot comply with the probate court’s order without 

drawing on the homestead sale proceeds. Lanford challenges the trial 
6

court’s authorization of payments from the homestead sale proceeds and the 

reasonableness of the awards to Phemister and her attorney. 

We first address the homestead issue, starting from the perspective of 

Phemister’s role as personal representative of Decedent’s estate, and then 

from her position as testamentary trustee. We then discuss whether the 

probate court’s awards were reasonable. 

II. Homestead Proceeds to Phemister, as Personal Representative 

The probate court erred in allowing for reimbursement of Phemister’s

personal representative fees and costs from the homestead sale proceeds 

because Florida’s constitutional homestead provisions forbade it. We review 

de novo an issue concerning the constitutional homestead protection. See 

Anderson v. Letosky, 304 So. 3d 801, 803 (Fla. 2d DCA 2020). The Florida 

Constitution protects a homestead from “judgment[s], decree[s] or 

execution[s],” except for payment of certain limited debts. Art. X, § 4(a), Fla. 

Const. These homestead exemptions inure to the owner’s “surviving spouse 

or heirs.” Art. X, § 4(b), Fla. Const. After a decedent’s death, her heir “has 

legal ownership of the property,” and “she may sell it without regard to 

decedent’s creditors or administrative expenses.” Morey v. Everbank, 93 

So. 3d 482, 488 (Fla. 1st DCA 2012) (quoting Est. of Shefner v. ShefnerHolden, 2 So. 3d 1076, 1078 (Fla. 3d DCA 2009)). 
7

Here, Lanford concedes that Schell, as Decedent’s sister and the 

testamentary trust’s beneficiary, was Decedent’s heir for purposes of 

homestead protections.6 When protected homestead7 property is devised to 

an heir, it passes outside of the probate estate. See § 733.607(1), Fla. Stat.

(2016) (“Except as otherwise provided by a decedent’s will, every personal 

representative has a right to, and shall take possession or control of, the 

decedent’s property, except the protected homestead . . . .”) (emphasis 

added); § 733.608(1)(c), Fla. Stat. (2016) (“All real or personal property of 

the decedent, except the protected homestead . . . shall be assets in the 

hands of the personal representative . . . for the payment of . . . expenses of 

the administration and obligations of the decedent’s estate.”) (emphasis 

added); see also Clifton v. Clifton, 553 So. 2d 192, 194 n.3 (Fla. 5th DCA 

6 The probate court entered a final order determining Phemister, as the 

testamentary trust’s trustee, was entitled to constitutional homestead 

protections for Schell’s benefit. Lanford did not appeal this order. See Fla. 

R. App. P. 9.170(b) (limiting appeals in probate and guardianship 

proceedings). Therefore, for the purposes of this decision, we must accept 

that Schell, as the testamentary trust’s beneficiary, is an “heir” for purposes 

of constitutional homestead protections. Accordingly, we do not determine 

whether a trust’s beneficiary is entitled to constitutional homestead 

protections as an “heir” under Florida law. Our decision is not intended, and 

should not be cited, to stand for this proposition. 

7

“‘Protected homestead’ means the property described in § 4(a)(1), 

Art. X of the State Constitution on which at the death of the owner the 

exemption inures to the owner’s surviving spouse or heirs under § 4(b), Art. 

X of the State Constitution.” § 731.201(30).
8

1989) (“Homestead property, whether devised or not, passes outside of the 

probate estate.”). Phemister insists that the Kirk Trust is not Decedent’s 

“heir” for the purpose of constitutional homestead protections, but this 

misses the point. 

Because the parties did not appeal the trial court’s previous order, 

which found that Decedent’s homestead, complete with its constitutional 

protections, passed to Schell at the moment of Decedent’s death, the sale 

proceeds from Decedent’s devised homestead cannot be used to pay the 

estate’s administrative fees and costs. See § 733.608(1)(c). Similarly, a 

general directive in a testamentary trust instrument—such as Decedent’s 

will—to pay “debts, claims, or expenses” does not subject protected 

homestead to estate obligations or administrative estate expenses. See §

736.1109(2), (4), Fla. Stat. (2021). 

Here, the escrowed funds are proceeds from the sale of Decedent’s

protected homestead. The homestead passed outside of the probate estate, 

and the proceeds from the sale became an asset of the testamentary trust 

to be used for Schell’s benefit. See Thompson v. Laney, 766 So. 2d 1087, 

1088 (Fla. 3d DCA 2000) (reiterating that in absence of will provision stating 

otherwise, devisee entitled to sell homestead property and keep proceeds of 

sale); see also Est. of Shefner, 2 So. 3d at 1078 (“The heir’s sale of the 
9

property, after the decedent’s death, does not change the legal 

consequences of the bequest from the decedent to the heir.”). Accordingly, 

we reverse that portion of the probate court’s final order reimbursing

Phemister and her attorneys, in her capacity as personal representative of 

Decedent’s estate, their fees and costs from the homestead sale proceeds. 

III. Homestead Proceeds to Phemister, as Testamentary Trustee

Our conclusions differ as it relates to Phemister and her attorney’s

services to the testamentary trust. The trial court correctly allowed for 

reimbursement of Phemister’s fees and costs as testamentary trustee from 

the homestead sale proceeds. Our review of an issue involving the 

constitutional homestead protection is de novo. See Anderson, 304 So. 3d 

at 803. We review an order involving trustee fees for an abuse of discretion. 

See Bronstein v. Bronstein, 332 So. 3d 510, 514 (Fla. 4th DCA 2021); 

Demircan v. Mikhaylov, 306 So. 3d 142, 149 (Fla. 3d DCA 2020). Phemister 

bore the burden of proof below to prove her and her lawyers’ fees and costs

were reasonably necessary. See Bronstein, 332 So. 3d at 514 (quoting 

Barnett v. Barnett, 340 So. 2d 548, 550 (Fla. 1st DCA 1976)). She also had 

to prove that these fees and costs inured to the trust’s benefit and not anyone 

else’s. Id. 
10

Under Florida law, trustees have the power to pay trust expenses, their 

own compensation, and their attorney’s fees from trust assets. §

736.0816(15), (20), Fla. Stat. (2021). Decedent’s will is silent on how the 

testamentary trustee will be paid, but it did not contemplate that the 

testamentary trustee would work for free. Further, Florida law also does not 

require trustees to work for free. Under Florida law, trustees have the power 

to pay trust expenses, their own compensation, and their attorney’s fees from 

trust assets. § 736.0816(15), (20), Fla. Stat. (2021). 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). Trustees 

are also allowed reimbursement for reasonable trust expenses. § 

736.0709(1), Fla. Stat. (2021). 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 argues that a homestead willed to a trust is entitled to the same

constitutional protections against claims from the trustee as it is to estate 

administration claims. He concedes, however, there is no legal authority

supporting this argument, and he otherwise fails to explain why homestead 
11

protections should apply against the trustee. Instead, he suggests we rely 

on a per curiam affirmance without opinion case. Per curiam affirmances 

without opinion, however, have no precedential value because the reasons 

for affirmance are indeterminable. Hicks v. Am. Integrity Ins. of Fla., 241 So. 

3d 925, 929 (Fla. 5th DCA 2018). Accordingly, Lanford cannot demonstrate 

the probate court erred in awarding Phemister and her lawyers statutorily 

authorized fees and costs for administering the trust, including allowing 

reimbursement from homestead sale proceeds. We therefore affirm that 

portion of the probate court’s order.

IV. The Reasonableness of the Expenses, Fees, and Costs

We have no transcripts of the evidentiary hearing regarding

Phemister’s and her attorney’s fees and costs incurred in administering the 

testamentary trust. Accordingly, we will not disturb the probate court’s 

determination that these items were both reasonable and incurred for the 

testamentary trust’s benefit. See Applegate v. Barnett Bank of Tallahassee, 

377 So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, 

the appellate court can not properly resolve the underlying factual issues so 

as to conclude that the trial court’s judgment is not supported by the evidence 

or an alternate theory.”). 
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Lanford’s categorical objection to Phemister’s failure to distinguish

between work she and her lawyers performed for the estate versus services

performed for the trust might have had some merit. That said, without a 

transcript or Lanford’s compliance with the probate court’s order directing 

him to object by timeline and line item, we are unable to determine whether 

any of the awarded items related to tasks pertaining solely to personal 

representative work. The absence of both a transcript and this critical 

information compels our affirmance on this point.

We therefore reverse the trial court’s determination that Phemister and 

her attorneys are entitled to reimbursement from the homestead sale 

proceeds for their work as Decedent’s personal representative. We 

otherwise affirm. 

AFFIRMED IN PART; REVERSED IN PART.

EDWARDS and EISNAUGLE, JJ., concur.