CS/HB 1197

A bill to be entitled
2An act relating to probate of an estate; providing a short
3title; creating s. 198.46, F.S.; providing definitions;
4imposing a retaliatory tax on property of a nonresident
5decedent when the nonresident's state of domicile imposes
6estate, inheritance, or other death taxes upon a resident
7of this state; providing a limitation; specifying tax rate
8criteria; providing tax payment requirements; creating s.
9733.1051, F.S.; authorizing a court to construe the terms
10of certain wills for certain purposes under certain
11circumstances; providing definitions; providing criteria
12for court construction of a will; providing for
13nonapplication to certain dispositions; authorizing a
14personal representative to take certain actions without
15court order pending a determination of estate
16distribution; limiting personal representative liability;
17preserving certain rights to construe a will; providing
18for retroactive operation; providing application;
19providing effective dates.
21Be It Enacted by the Legislature of the State of Florida:
23     Section 1.  This act may be cited as the "Florida Taxpayers
24Protection Act."
25     Section 2.  Section 198.46, Florida Statutes, is created to
27     198.46  Retaliatory estate, inheritance, or other death
29     (1)  For purposes of this section, the term:
30     (a)  "Nonresident" means any person who is not a resident
31of this state but is a resident of the United States.
32     (b)  "State of domicile" means the state where a person is
33a resident.
34     (2)  A tax is imposed upon the transfer of property located
35in this state of every person who at the time of death was a
36nonresident. The tax is imposed only if the nonresident's state
37of domicile imposes an estate, inheritance, or other death tax
38upon the transfer of the property of a resident of this state
39that is located in that state and the amount of tax is in excess
40of the amount of such taxes that would be imposed by this state
41on transfers of such nonresident's similar property located in
42this state.
43     (3)  The tax due under this section shall be equal to the
44tax that a nonresident would have to pay under the laws of his
45or her state of domicile if he or she were a resident of this
46state and the nonresident's property located in this state were
47located in the nonresident's state of domicile and the
48nonresident's property located in the state of domicile were
49located in this state.
50     (4)  Notwithstanding any other provision of this chapter,
51the tax imposed by this section is due and payable, and tax
52returns are due, on or before the last day prescribed by the
53laws of the nonresident's state of domicile for the payment of
54tax or the filing of returns.
55     Section 3.  Effective upon this act becoming a law, section
56733.1051, Florida Statutes, is created to read:
57     733.1051  Limited judicial construction of will with
58federal tax provisions.-
59     (1)  Upon the application of a personal representative or a
60person who is or may be a beneficiary who is affected by the
61outcome of a court's construction, a court at any time may
62construe the terms of a will to define the respective shares or
63determine beneficiaries, in accordance with the intention of a
64testator, if a disposition occurs during the applicable period
65and the will contains a provision that:
66     (a)  Includes a disposition formula referring to the terms
67"unified credit," "estate tax exemption," "applicable exemption
68amount," "applicable credit amount," "applicable exclusion
69amount," "generation-skipping transfer tax exemption," "GST
70exemption," "marital deduction," "maximum marital deduction,"
71"unlimited marital deduction," or "maximum charitable
73     (b)  Measures a share of an estate based on the amount that
74may pass free of federal estate tax or the amount that may pass
75free of federal generation-skipping transfer tax;
76     (c)  Otherwise makes a disposition referring to a
77charitable deduction, marital deduction, or another provision of
78federal estate tax or generation-skipping transfer tax law; or
79     (d)  Appears to be intended to reduce or minimize the
80federal estate tax or generation-skipping transfer tax.
81     (2)  For purposes of this section:
82     (a)  The term "applicable period" means a period beginning
83January 1, 2010, and ending on the end of the day on the earlier
84of December 31, 2010, or the day before the date that an act
85becomes law that repeals or otherwise modifies or has the effect
86of repealing or modifying s. 901 of The Economic Growth and Tax
87Relief Reconciliation Act of 2001.
88     (b)  A "disposition occurs" when the testator dies.
89     (3)  In construing the will, the court shall consider the
90terms and purposes of the will, the facts and circumstances
91surrounding the creation of the will, and the testator's
92probable intent. In determining the testator's probable intent,
93the court may consider evidence relevant to the testator's
94intent even though the evidence contradicts an apparent plain
95meaning of the will.
96     (4)  This section does not apply to a disposition that is
97specifically conditioned upon no federal estate or generation-
98skipping transfer tax being imposed.
99     (5)(a)  Unless otherwise ordered by the court, during the
100applicable period and without court order, the personal
101representative administering a will containing one or more
102provisions described in subsection (1) may:
103     1.  Delay or refrain from making any distribution.
104     2.  Incur and pay fees and costs reasonably necessary to
105determine his or her duties and obligations, including, but not
106limited to, compliance with provisions of existing and
107reasonably anticipated future federal tax laws.
108     3.  Establish and maintain reserves for the payment of such
109fees and costs and federal taxes.
110     (b)  The personal representative shall not be liable for
111his or her actions as provided in this subsection made or taken
112in good faith.
113     (6)  The provisions of this section are in addition to, and
114not in derogation of, rights under the common law to construe a
116     (7)  This section is remedial in nature and intended to
117provide a new or modified legal remedy. This section shall
118operate retroactively to January 1, 2010.
119     Section 4.  Except as otherwise expressly provided in this
120act, this act shall take effect July 1, 2010, and section
121198.46, Florida Statutes, as created by this act, shall apply to
122nonresidents who die after June 30, 2010.

CODING: Words stricken are deletions; words underlined are additions.