Florida Senate - 2015 SB 872
By Senator Hukill
8-00099-15 2015872__
1 A bill to be entitled
2 An act relating to estates; amending s. 733.106, F.S.;
3 authorizing the court, if costs and attorney fees are
4 to be paid from the estate under specified sections of
5 law, to direct payment from a certain part of the
6 estate or, under specified circumstances, to direct
7 payment from a trust; authorizing costs and fees to be
8 assessed against one or more persons’ part of the
9 trust in such proportions as the court finds just and
10 proper; specifying factors that the court may consider
11 in directing the assessment of such costs and fees;
12 authorizing a court to assess costs and fees without
13 finding that the person engaged in specified wrongful
14 acts; amending s. 733.212, F.S.; revising the required
15 content for a notice of administration; revising
16 provisions that require an interested person, who has
17 been served a notice of administration, to file
18 specified objections in an estate matter within 3
19 months after service of such notice; providing that
20 the 3-month period may only be extended for certain
21 estoppel; providing that objections that are not
22 barred by the 3-month period must be filed no later
23 than a specified date; deleting references to
24 objections based upon the qualifications of a personal
25 representative; amending s. 733.2123, F.S.; conforming
26 provisions to changes made by the act; amending s.
27 733.3101, F.S.; requiring a personal representative to
28 resign immediately if he or she knows that he or she
29 was not qualified to act at the time of appointment;
30 requiring a personal representative who was qualified
31 to act at such appointment to file a notice if no
32 longer qualified; authorizing an interested person
33 within a specified period of time to request the
34 removal of a personal representative who files such
35 notice; providing that a personal representative is
36 liable for costs and attorney fees incurred in a
37 removal proceeding if he or she is removed and should
38 have known of the facts supporting the removal;
39 defining the term “qualified”; amending s. 733.504,
40 F.S.; requiring a personal representative to be
41 removed and the letters of administration revoked if
42 he or she was not qualified to act at the time of
43 appointment; amending s. 733.617, F.S.; prohibiting an
44 attorney or person related to the attorney from
45 receiving compensation for serving as a personal
46 representative if the attorney prepared or supervised
47 execution of the will unless the attorney or person is
48 related to the testator or the testator acknowledges
49 in writing the receipt of certain disclosures;
50 specifying the disclosures that must be acknowledged;
51 specifying when an attorney is deemed to have prepared
52 or supervised the execution of a will; specifying when
53 a person is “related” to another individual;
54 specifying when an attorney or person related to the
55 attorney is deemed to be nominated as personal
56 representative; providing that the provisions do not
57 limit an interested person’s rights or remedies at law
58 or equity except for compensation payable to a
59 personal representative; providing that the failure to
60 obtain a written acknowledgment of the disclosure does
61 not disqualify a personal representative from serving
62 or affect the validity of a will; providing a form for
63 the written acknowledgment; providing applicability;
64 amending s. 733.817, F.S.; defining and redefining
65 terms; deleting a provision that exempts an interest
66 in protected homestead from the apportionment of
67 taxes; providing for the payment of taxes on protected
68 homestead family allowance and exempt property by
69 certain other property to the extent such other
70 property is sufficient; revising the allocation of
71 taxes; revising the apportionment of the net tax
72 attributable to specified interests; authorizing a
73 court to assess liability in an equitable manner under
74 certain circumstances; providing that a governing
75 instrument may not direct that taxes be paid from
76 property other than property passing under the
77 governing instrument, except under specified
78 conditions; requiring that direction in a governing
79 instrument be express to apportion taxes under certain
80 circumstances; requiring that the right of recovery
81 provided in the Internal Revenue Code for certain
82 taxes be expressly waived in the decedent’s will or
83 revocable trust with certain specificity;
84 specifying the property upon which certain tax is
85 imposed for allocation and apportionment of certain
86 tax; providing that a general statement in the
87 decedent’s will or revocable trust waiving all rights
88 of reimbursement or recovery under the Internal
89 Revenue Code is not an express waiver of certain
90 rights of recovery; requiring direction to
91 specifically reference the generation-skipping
92 transfer tax imposed by the Internal Revenue Code to
93 direct its apportionment; authorizing, under certain
94 circumstances, the decedent to direct by will the
95 amount of net tax attributable to property over which
96 the decedent held a general power of appointment under
97 certain circumstances; providing that an express
98 direction in a revocable trust is deemed to be a
99 direction contained in the decedent’s will as well as
100 the revocable trust under certain circumstances;
101 providing that an express direction in the decedent’s
102 will to pay tax from the decedent’s revocable trust by
103 specific reference to the revocable trust is effective
104 unless a contrary express direction is contained in
105 the revocable trust; revising the resolution of
106 conflicting directions in governing instruments with
107 regard to payment of taxes; providing that the later
108 express direction in the will or other governing
109 instrument controls; providing that the date of an
110 amendment to a will or other governing instrument is
111 the date of the will or trust for conflict resolution
112 only if the codicil or amendment contains an express
113 tax apportionment provision or an express modification
114 of the tax apportionment provision; providing that a
115 will is deemed executed after another governing
116 instrument if the decedent’s will and another
117 governing instrument were executed on the same date;
118 providing that an earlier conflicting governing
119 instrument controls as to any tax remaining unpaid
120 after the application of the later conflicting
121 governing instrument; providing that a grant of
122 permission or authority in a governing instrument to
123 request payment of tax from property passing under
124 another governing instrument is not a direction
125 apportioning the tax to the property passing under the
126 other governing instrument; providing a grant of
127 permission or authority in a governing instrument to
128 pay tax attributable to property not passing under the
129 governing instrument is not a direction apportioning
130 the tax to property passing under the governing
131 instrument; providing application; prohibiting the
132 requiring of a personal representative or fiduciary to
133 transfer to a recipient property that may be used for
134 payment of taxes; amending s. 736.0708, F.S.;
135 prohibiting an attorney or person related to the
136 attorney from receiving compensation for serving as a
137 trustee if the attorney prepared or supervised
138 execution of the trust instrument unless the attorney
139 or person is related to the settlor or the settlor
140 acknowledges in writing the receipt of certain
141 disclosures; specifying the disclosures that must be
142 acknowledged; specifying when an attorney is deemed to
143 have prepared or supervised the execution of a trust
144 instrument; specifying when a person is “related” to
145 another individual; specifying when an attorney or
146 person related to the attorney is deemed to be
147 appointed as trustee; providing that the provisions do
148 not limit an interested person’s rights or remedies at
149 law or equity except for compensation payable to a
150 trustee; providing that the failure to obtain a
151 written acknowledgment of the disclosure does not
152 disqualify a trustee from serving or affect the
153 validity of a trust instrument; providing a form for
154 the written acknowledgment; providing applicability;
155 amending s. 736.1005, F.S.; authorizing the court, if
156 attorney fees are to be paid from the trust under
157 specified sections of law, to direct payment from a
158 certain part of the trust; providing that fees may be
159 assessed against one or more persons’ part of the
160 trust in such proportions as the court finds just and
161 proper; specifying factors that the court may consider
162 in directing the assessment of such fees; providing
163 that a court may assess fees without finding that a
164 person engaged specified wrongful acts; amending s.
165 736.1006, F.S.; authorizing the court, if costs are to
166 be paid from the trust under specified sections of
167 law, to direct payment from a certain part of the
168 trust; providing that costs may be assessed against
169 one or more persons’ part of the trust in such
170 proportions as the court finds just and proper;
171 specifying factors that the court may consider in
172 directing the assessment of such costs; reenacting s.
173 738.302(4), F.S., relating to the apportionment of
174 receipts and disbursements when the decedent dies or
175 income interest begins, to incorporate the amendment
176 made to s. 733.817, F.S., in a reference thereto;
177 providing that specified sections of the act are
178 remedial and intended to clarify existing law;
179 providing for retroactive and prospective application
180 of specified portions of the act; providing effective
181 dates.
182
183 Be It Enacted by the Legislature of the State of Florida:
184
185 Section 1. Effective July 1, 2015, section 733.106, Florida
186 Statutes, is amended to read:
187 733.106 Costs and attorney attorney’s fees.—
188 (1) In all probate proceedings, costs may be awarded as in
189 chancery actions.
190 (2) A person nominated as personal representative, or any
191 proponent of a will if the person so nominated does not act
192 within a reasonable time, if in good faith justified in offering
193 the will in due form for probate, shall receive costs and
194 attorney attorney’s fees from the estate even though probate is
195 denied or revoked.
196 (3) Any attorney who has rendered services to an estate may
197 be awarded reasonable compensation from the estate.
198 (4) If When costs and attorney attorney’s fees are to be
199 paid from the estate under this section, s. 733.6171(4), s.
200 736.1005, or s. 736.1006, the court, in its discretion, may
201 direct from what part of the estate they shall be paid.
202 (a) If the court directs an assessment against a person’s
203 part of the estate and such part is insufficient to fully pay
204 the assessment, the court may direct payment from the person’s
205 part of a trust, if any, if a pourover will is involved and the
206 matter is interrelated with the trust.
207 (b) All or any part of the costs and attorney fees to be
208 paid from the estate may be assessed against one or more
209 persons’ part of the estate in such proportions as the court
210 finds to be just and proper.
211 (c) In the exercise of its discretion, the court may
212 consider the following factors:
213 1. The relative impact of an assessment on the estimated
214 value of each person’s part of the estate.
215 2. The amount of costs and attorney fees to be assessed
216 against a person’s part of the estate.
217 3. The extent to which a person whose part of the estate is
218 to be assessed, individually or through counsel, actively
219 participated in the proceeding.
220 4. The potential benefit or detriment to a person’s part of
221 the estate expected from the outcome of the proceeding.
222 5. The relative strength or weakness of the merits of the
223 claims, defenses, or objections, if any, asserted by a person
224 whose part of the estate is to be assessed.
225 6. Whether a person whose part of the estate is to be
226 assessed was a prevailing party with respect to one or more
227 claims, defenses, or objections.
228 7. Whether a person whose part of the estate is to be
229 assessed unjustly caused an increase in the amount of costs and
230 attorney fees incurred by the personal representative or another
231 interested person in connection with the proceeding.
232 8. Any other relevant fact, circumstance, or equity.
233 (d) The court may assess a person’s part of the estate
234 without finding that the person engaged in bad faith,
235 wrongdoing, or frivolousness.
236 Section 2. Paragraph (c) of subsection (2) and subsection
237 (3) of section 733.212, Florida Statutes, are amended to read:
238 733.212 Notice of administration; filing of objections.—
239 (2) The notice shall state:
240 (c) That any interested person on whom a copy of the notice
241 of administration is served must file on or before the date that
242 is 3 months after the date of service of a copy of the notice of
243 administration on that person any objection that challenges the
244 validity of the will, the qualifications of the personal
245 representative, the venue, or the jurisdiction of the court. The
246 3-month time period may only be extended for estoppel based upon
247 a misstatement by the personal representative regarding the time
248 period within which an objection must be filed. The time period
249 may not be extended for any other reason, including affirmative
250 representation, failure to disclose information, or misconduct
251 by the personal representative or any other person. Unless
252 sooner barred by subsection (3), all objections to the validity
253 of a will, venue, or the jurisdiction of the court must be filed
254 no later than the earlier of the entry of an order of final
255 discharge of the personal representative or 1 year after service
256 of the notice of administration.
257 (3) Any interested person on whom a copy of the notice of
258 administration is served must object to the validity of the
259 will, the qualifications of the personal representative, the
260 venue, or the jurisdiction of the court by filing a petition or
261 other pleading requesting relief in accordance with the Florida
262 Probate Rules on or before the date that is 3 months after the
263 date of service of a copy of the notice of administration on the
264 objecting person, or those objections are forever barred. The 3
265 month time period may only be extended for estoppel based upon a
266 misstatement by the personal representative regarding the time
267 period within which an objection must be filed. The time period
268 may not be extended for any other reason, including affirmative
269 representation, failure to disclose information, or misconduct
270 by the personal representative or any other person. Unless
271 sooner barred by this subsection, all objections to the validity
272 of a will, venue, or the jurisdiction of the court must be filed
273 no later than the earlier of the entry of an order of final
274 discharge of the personal representative or 1 year after service
275 of the notice of administration.
276 Section 3. Section 733.2123, Florida Statutes, is amended
277 to read:
278 733.2123 Adjudication before issuance of letters.—A
279 petitioner may serve formal notice of the petition for
280 administration on interested persons. A person who is served
281 with such notice before the issuance of letters or who has
282 waived notice may not challenge the validity of the will,
283 testacy of the decedent, qualifications of the personal
284 representative, venue, or jurisdiction of the court, except in
285 the proceedings before issuance of letters.
286 Section 4. Section 733.3101, Florida Statutes, is amended
287 to read:
288 733.3101 Personal representative not qualified.—
289 (1) A personal representative shall resign immediately if
290 the personal representative knows that he or she was not
291 qualified to act at the time of appointment.
292 (2) Any time a personal representative, who was qualified
293 to act at the time of appointment, knows or should have known
294 that he or she would not be qualified for appointment if
295 application for appointment were then made, the personal
296 representative shall promptly file and serve a notice setting
297 forth the reasons. The personal representative’s notice shall
298 state that any interested person may petition to remove the
299 personal representative. An interested person on whom a copy of
300 the personal representative’s notice is served may file a
301 petition requesting the personal representative’s removal within
302 30 days after the date on which such notice is served.
303 (3) A personal representative who fails to comply with this
304 section shall be personally liable for costs, including attorney
305 attorney’s fees, incurred in any removal proceeding, if the
306 personal representative is removed. This liability extends to a
307 personal representative who does not know, but should have
308 known, of the facts that would have required him or her to
309 resign under subsection (1) or to file and serve notice under
310 subsection (2). This liability shall be cumulative to any other
311 provided by law.
312 (4) As used in this section, the term “qualified” means
313 that the personal representative is qualified under ss. 733.302
314 and 733.303.
315 Section 5. Section 733.504, Florida Statutes, is amended to
316 read:
317 733.504 Removal of personal representative; causes for
318 removal.—A personal representative shall be removed and the
319 letters revoked if he or she was not qualified to act at the
320 time of appointment. A personal representative may be removed
321 and the letters revoked for any of the following causes, and the
322 removal shall be in addition to any penalties prescribed by law:
323 (1) Adjudication that the personal representative is
324 incapacitated.
325 (2) Physical or mental incapacity rendering the personal
326 representative incapable of the discharge of his or her duties.
327 (3) Failure to comply with any order of the court, unless
328 the order has been superseded on appeal.
329 (4) Failure to account for the sale of property or to
330 produce and exhibit the assets of the estate when so required.
331 (5) Wasting or maladministration of the estate.
332 (6) Failure to give bond or security for any purpose.
333 (7) Conviction of a felony.
334 (8) Insolvency of, or the appointment of a receiver or
335 liquidator for, any corporate personal representative.
336 (9) Holding or acquiring conflicting or adverse interests
337 against the estate that will or may interfere with the
338 administration of the estate as a whole. This cause of removal
339 shall not apply to the surviving spouse because of the exercise
340 of the right to the elective share, family allowance, or
341 exemptions, as provided elsewhere in this code.
342 (10) Revocation of the probate of the decedent’s will that
343 authorized or designated the appointment of the personal
344 representative.
345 (11) Removal of domicile from Florida, if domicile was a
346 requirement of initial appointment.
347 (12) The personal representative was qualified to act at
348 the time of appointment, but is would not now be entitled to
349 appointment.
350
351 Removal under this section is in addition to any penalties
352 prescribed by law.
353 Section 6. Effective October 1, 2015, subsection (6) of
354 section 733.617, Florida Statutes, is amended, and subsection
355 (8) is added to that section, to read:
356 733.617 Compensation of personal representative.—
357 (6) Except as provided in subsection (8), a If the personal
358 representative who is a member of The Florida Bar and who has
359 rendered legal services in connection with the administration of
360 the estate, then in addition to a fee as personal
361 representative, there also shall be allowed a fee for the legal
362 services rendered in addition to a fee as personal
363 representative.
364 (8)(a) An attorney, or a person related to the attorney, is
365 not entitled to compensation for serving as personal
366 representative if the attorney prepared or supervised the
367 execution of the will that nominates the attorney or person
368 related to the attorney as personal representative, unless the
369 attorney or person nominated is related to the testator or the
370 attorney makes the following disclosures to the testator in
371 writing before the will is executed:
372 1. Subject to certain statutory limitations, most family
373 members regardless of their residence, other persons who are
374 residents of Florida, including friends, and corporate
375 fiduciaries are eligible to serve as a personal representative.
376 2. Any person, including an attorney, who serves as a
377 personal representative is entitled to receive reasonable
378 compensation for serving as personal representative.
379 3. Compensation payable to the personal representative is
380 in addition to any attorney fees payable to the attorney or the
381 attorney’s firm for legal services rendered to the personal
382 representative.
383 (b) The testator must execute a written statement
384 acknowledging that the disclosures required by this subsection
385 were made prior to the execution of the will. The written
386 acknowledgment must be in a separate writing from the will, but
387 may be annexed to the will. The written acknowledgment may be
388 executed before or after the execution of the will in which the
389 attorney or related person is nominated as the personal
390 representative.
391 (c) For purposes of this subsection:
392 1. An attorney is deemed to have prepared or supervised the
393 execution of a will if the preparation or the supervision of the
394 execution of the will was performed by an employee or attorney
395 employed by the same firm as the attorney at the time the will
396 was executed.
397 2.a. A person is “related” to an individual if, at the time
398 the attorney prepared or supervised the execution of the will,
399 the person is:
400 (I) A spouse of the individual;
401 (II) A lineal ascendant or descendant of the individual;
402 (III) A sibling of the individual;
403 (IV) A relative of the individual or of the individual’s
404 spouse with whom the attorney maintains a close, familial
405 relationship;
406 (V) A spouse of a person described in sub-sub-subparagraphs
407 (I)-(IV); or
408 (VI) A person who cohabits with the individual.
409 b. An employee or attorney employed by the same firm as the
410 attorney at the time the will is executed is deemed to be
411 related to the attorney.
412 3. An attorney or person related to the attorney is deemed
413 to be nominated in the will if the will provided the attorney or
414 a person related to the attorney with the power to nominate the
415 personal representative and the attorney or person related to
416 attorney was nominated using that power.
417 (d) This subsection applies to provisions nominating an
418 attorney or a person related to the attorney as personal
419 representative, copersonal representative, or successor or
420 alternate personal representative if the person nominated is
421 unable or unwilling to serve.
422 (e) Other than compensation payable to the personal
423 representative, this subsection does not limit any rights or
424 remedies that an interested person may have at law or equity.
425 (f) The failure to obtain a written acknowledgment from the
426 testator under this subsection does not disqualify a personal
427 representative from serving and does not affect the validity of
428 a will.
429 (g) A written acknowledgment signed by the testator that is
430 in substantially the following form is deemed to comply with the
431 disclosure requirements of this subsection:
432
433 I, ...(Name)..., declare that:
434 I have designated ...(my attorney, an attorney employed in
435 the same law firm as my attorney, or a person related to my
436 attorney)... as a nominated personal representative in my will
437 (or codicil) dated ...(Date)..._.
438 Before executing the will (or codicil), I was informed
439 that:
440 (1) Subject to certain statutory limitations, most family
441 members regardless of their residence, other persons who are
442 residents of Florida, including friends, and corporate
443 fiduciaries are eligible to serve as a personal representative.
444 (2) Any person, including an attorney, who serves as a
445 personal representative is entitled to receive reasonable
446 compensation for serving as personal representative.
447 (3) Compensation payable to the personal representative is
448 in addition to any attorney fees payable to the attorney or the
449 attorney’s firm for legal services rendered to the personal
450 representative.
451
452 ...(Testator)...
453
454 ...(Dated)...
455
456 (h) This subsection applies to each nomination made
457 pursuant to a will that is:
458 1. Executed by a resident of this state on or after October
459 1, 2015.
460 2. Republished by a resident of this state on or after
461 October 1, 2015, if the republished will nominates the attorney
462 who prepared or supervised the execution of the instrument that
463 republished the will, or a person related to such attorney, as
464 personal representative.
465 Section 7. Effective July 1, 2015, section 733.817, Florida
466 Statutes, is amended to read:
467 (Substantial rewording of section. See
468 s. 733.817, F.S., for present text.)
469 733.817 Apportionment of estate taxes.—
470 (1) DEFINITIONS.—As used in this section, the term:
471 (a) “Fiduciary” means a person, other than the personal
472 representative in possession of property included in the measure
473 of the tax, who is liable to the applicable taxing authority for
474 payment of the entire tax to the extent of the value of the
475 property in possession.
476 (b) “Generation-skipping transfer tax” means the
477 generation-skipping transfer tax imposed by chapter 13 of the
478 Internal Revenue Code on direct skips of interests includible in
479 the federal gross estate or a corresponding tax imposed by any
480 state or country or political subdivision of the foregoing. The
481 term does not include the generation-skipping transfer tax on
482 taxable distributions, taxable terminations, or any other
483 generation-skipping transfer. The terms “direct skip,” “taxable
484 distribution,” and “taxable termination” have the same meanings
485 as provided in s. 2612 of the Internal Revenue Code.
486 (c) “Governing instrument” means a will, trust agreement,
487 or any other document that controls the transfer of property on
488 the occurrence of the event with respect to which the tax is
489 being levied.
490 (d) “Gross estate” means the gross estate, as determined by
491 the Internal Revenue Code with respect to the federal estate tax
492 and the Florida estate tax, and as that concept is otherwise
493 determined by the estate, inheritance, or death tax laws of the
494 particular state, country, or political subdivision whose tax is
495 being apportioned.
496 (e) “Included in the measure of the tax” means for each
497 separate tax that an interest may incur, only interests included
498 in the measure of that particular tax are considered. As used in
499 this section, the term does not include:
500 1. Any interest, whether passing under the will or not, to
501 the extent the interest is initially deductible from the gross
502 estate, without regard to any subsequent reduction of the
503 deduction by reason of the charge of any part of the applicable
504 tax to the interest. If an election is required for
505 deductibility, an interest is not initially deductible unless
506 the election for deductibility is allowed.
507 2. Interests or amounts that are not included in the gross
508 estate but are included in the amount upon which the applicable
509 tax is computed, such as adjusted taxable gifts pursuant to s.
510 2001 of the Internal Revenue Code.
511 3. Gift taxes included in the gross estate pursuant to s.
512 2035 of the Internal Revenue Code and the portion of any inter
513 vivos transfer included in the gross estate pursuant to s. 529
514 of the Internal Revenue Code, notwithstanding inclusion in the
515 gross estate.
516 (f) “Internal Revenue Code” means the Internal Revenue Code
517 of 1986, as amended.
518 (g) “Net tax” means the net tax payable to the particular
519 state, country, or political subdivision whose tax is being
520 apportioned, after taking into account all credits against the
521 applicable tax except as provided in this section. With respect
522 to the federal estate tax, net tax is determined after taking
523 into account all credits against the tax except for the credit
524 for foreign death taxes and except for the credit or deduction
525 for state taxes imposed by states other than this state.
526 (h) “Nonresiduary devise” means any devise that is not a
527 residuary devise.
528 (i) “Nonresiduary interest,” in connection with a trust,
529 means any interest in a trust which is not a residuary interest.
530 (j) “Recipient” means, with respect to property or an
531 interest in property included in the gross estate, an heir at
532 law in an intestate estate, devisee in a testate estate,
533 beneficiary of a trust, beneficiary of a life insurance policy,
534 annuity, or other contractual right, surviving tenant, taker as
535 a result of the exercise or in default of the exercise of a
536 general power of appointment, person who receives or is to
537 receive the property or an interest in the property, or person
538 in possession of the property, other than a creditor.
539 (k) “Residuary devise” has the meaning in s. 731.201.
540 (l) “Residuary interest,” in connection with a trust, means
541 an interest in the assets of a trust which remain after
542 provision for any distribution that is to be satisfied by
543 reference to a specific property or type of property, fund, sum,
544 or statutory amount.
545 (m) “Revocable trust” means a trust as described in s.
546 733.707(3).
547 (n) “Section 2044 interest” means an interest included in
548 the measure of the tax by reason of s. 2044 of the Internal
549 Revenue Code.
550 (o) “State” means any state, territory, or possession of
551 the United States, the District of Columbia, or the Commonwealth
552 of Puerto Rico.
553 (p) “Tax” means any estate tax, inheritance tax,
554 generation-skipping transfer tax, or other tax levied or
555 assessed under the laws of this or any other state, the United
556 States, any other country, or any political subdivision of the
557 foregoing, as finally determined, which is imposed as a result
558 of the death of the decedent. The term also includes any
559 interest or penalties imposed in addition to the tax. Unless the
560 context indicates otherwise, the term means each separate tax.
561 The term does not include any additional estate tax imposed by
562 s. 2032A(c) or s. 2057(f) of the Internal Revenue Code or a
563 corresponding tax imposed by any state or country or political
564 subdivision of the foregoing. The additional estate tax imposed
565 shall be apportioned as provided in s. 2032A or s. 2057 of the
566 Internal Revenue Code.
567 (q) “Temporary interest” means an interest in income or an
568 estate for a specific period of time, for life, or for some
569 other period controlled by reference to extrinsic events,
570 whether or not in trust.
571 (r) “Tentative Florida tax” with respect to any property
572 means the net Florida estate tax that would have been
573 attributable to that property if no tax were payable to any
574 other state in respect of that property.
575 (s) “Value” means the pecuniary worth of the interest
576 involved as finally determined for purposes of the applicable
577 tax after deducting any debt, expense, or other deduction
578 chargeable to it for which a deduction was allowed in
579 determining the amount of the applicable tax. A lien or other
580 encumbrance is not regarded as chargeable to a particular
581 interest to the extent that it will be paid from other
582 interests. The value of an interest is not reduced by reason of
583 the charge against it of any part of the tax, except as provided
584 in paragraph (3)(a).
585 (2) ALLOCATION OF TAX.—Except as effectively directed in
586 the governing instrument pursuant to subsection (4), the net tax
587 attributable to the interests included in the measure of each
588 tax shall be determined by the proportion that the value of each
589 interest included in the measure of the tax bears to the total
590 value of all interests included in the measure of the tax.
591 Notwithstanding the foregoing provision of this subsection and
592 except as effectively directed in the governing instrument:
593 (a) The net tax attributable to section 2044 interests
594 shall be determined in the manner provided for the federal
595 estate tax in s. 2207A of the Internal Revenue Code, and the
596 amount so determined shall be deducted from the tax to determine
597 the net tax attributable to all other interests included in the
598 measure of the tax.
599 (b) The foreign tax credit allowed with respect to the
600 federal estate tax shall be allocated among the recipients of
601 interests finally charged with the payment of the foreign tax in
602 reduction of any federal estate tax chargeable to the recipients
603 of the foreign interests, whether or not any federal estate tax
604 is attributable to the foreign interests. Any excess of the
605 foreign tax credit shall be applied to reduce proportionately
606 the net amount of federal estate tax chargeable to the remaining
607 recipients of the interests included in the measure of the
608 federal estate tax.
609 (c) The reduction in the net tax attributable to the
610 deduction for state death taxes allowed by s. 2058 of the
611 Internal Revenue Code shall be allocated to the recipients of
612 the interests that produced the deduction. For this purpose, the
613 reduction in the net tax shall be calculated in the manner
614 provided for interests other than those described in paragraph
615 (a).
616 (d) The reduction in the Florida tax, if one is imposed, on
617 the estate of a Florida resident for tax paid to another state
618 shall be allocated as follows:
619 1. If the net tax paid to another state is greater than or
620 equal to the tentative Florida tax attributable to the property
621 subject to tax in the other state, none of the Florida tax shall
622 be attributable to that property.
623 2. If the net tax paid to another state is less than the
624 tentative Florida tax attributable to the property subject to
625 tax in the other state, the net Florida tax attributable to the
626 property subject to tax in the other state shall be the excess
627 of the amount of the tentative Florida tax attributable to the
628 property over the net tax payable to the other state with
629 respect to the property.
630 3. Any remaining net Florida tax shall be attributable to
631 property included in the measure of the Florida tax exclusive of
632 the property subject to tax in another state.
633 4. The net federal tax attributable to the property subject
634 to tax in the other state shall be determined as if the property
635 were located in that state.
636 (e) The net tax attributable to a temporary interest, if
637 any, is regarded as attributable to the principal that supports
638 the temporary interest.
639 (3) APPORTIONMENT OF TAX.—Except as otherwise effectively
640 directed in the governing instrument pursuant to subsection (4),
641 the net tax attributable to each interest shall be apportioned
642 as follows:
643 (a) Generation-skipping transfer tax.—Any federal or state
644 generation-skipping transfer tax shall be apportioned as
645 provided in s. 2603 of the Internal Revenue Code after the
646 application of the remaining provisions of this subsection to
647 taxes other than the generation-skipping transfer tax.
648 (b) Section 2044 interests.—The net tax attributable to
649 section 2044 interests shall be apportioned among the recipients
650 of the section 2044 interests in the proportion that the value
651 of each section 2044 interest bears to the total of all section
652 2044 interests. The net tax apportioned by this paragraph to
653 section 2044 interests that pass in the manner described in
654 paragraph (c) or paragraph (d) shall be apportioned to the
655 section 2044 interests in the manner described in those
656 paragraphs before the apportionment of the net tax attributable
657 to the other interests passing as provided in those paragraphs.
658 The net tax attributable to the interests other than the section
659 2044 interests which pass in the manner described in paragraph
660 (c) or paragraph (d) shall be apportioned only to such other
661 interests pursuant to those paragraphs.
662 (c) Wills.—The net tax attributable to property passing
663 under the decedent’s will shall be apportioned in the following
664 order of priority:
665 1. The net tax attributable to nonresiduary devises shall
666 be charged to and paid from the residuary estate, whether or not
667 all interests in the residuary estate are included in the
668 measure of the tax. If the residuary estate is insufficient to
669 pay the net tax attributable to all nonresiduary devises, the
670 balance of the net tax attributable to nonresiduary devises
671 shall be apportioned among the recipients of the nonresiduary
672 devises in the proportion that the value of each nonresiduary
673 devise included in the measure of the tax bears to the total of
674 all nonresiduary devises included in the measure of the tax.
675 2. The net tax attributable to residuary devises shall be
676 apportioned among the recipients of the residuary devises
677 included in the measure of the tax in the proportion that the
678 value of each residuary devise included in the measure of the
679 tax bears to the total of all residuary devises included in the
680 measure of the tax. If the residuary estate is insufficient to
681 pay the net tax attributable to all residuary devises, the
682 balance of the net tax attributable to residuary devises shall
683 be apportioned among the recipients of the nonresiduary devises
684 in the proportion that the value of each nonresiduary devise
685 included in the measure of the tax bears to the total of all
686 nonresiduary devises included in the measure of the tax.
687 (d) Trusts.—The net tax attributable to property passing
688 under the terms of any trust other than a trust created in the
689 decedent’s will shall be apportioned in the following order of
690 priority:
691 1. The net tax attributable to nonresiduary interests of
692 the trust shall be charged to and paid from the residuary
693 portion of the trust, whether or not all interests in the
694 residuary portion are included in the measure of the tax. If the
695 residuary portion is insufficient to pay the net tax
696 attributable to all nonresiduary interests, the balance of the
697 net tax attributable to nonresiduary interests shall be
698 apportioned among the recipients of the nonresiduary interests
699 in the proportion that the value of each nonresiduary interest
700 included in the measure of the tax bears to the total of all
701 nonresiduary interests included in the measure of the tax.
702 2. The net tax attributable to residuary interests of the
703 trust shall be apportioned among the recipients of the residuary
704 interests of the trust included in the measure of the tax in the
705 proportion that the value of each residuary interest included in
706 the measure of the tax bears to the total of all residuary
707 interests of the trust included in the measure of the tax. If
708 the residuary portion is insufficient to pay the net tax
709 attributable to all residuary interests, the balance of the net
710 tax attributable to residuary interests shall be apportioned
711 among the recipients of the nonresiduary interests in the
712 proportion that the value of each nonresiduary interest included
713 in the measure of the tax bears to the total of all nonresiduary
714 interests included in the measure of the tax.
715
716 Except as provided in paragraph (g), this paragraph applies
717 separately for each trust.
718 (e) Protected homestead, exempt property, and family
719 allowance.—
720 1. The net tax attributable to an interest in protected
721 homestead, exempt property, and the family allowance determined
722 under s. 732.403 shall be apportioned against the recipients of
723 other interests in the estate or passing under any revocable
724 trust in the following order of priority:
725 a. Class I.—Recipients of interests passing by intestacy
726 that are included in the measure of the federal estate tax.
727 b. Class II.—Recipients of residuary devises, residuary
728 interests, and pretermitted shares under ss. 732.301 and 732.302
729 that are included in the measure of the federal estate tax.
730 c. Class III.—Recipients of nonresiduary devises and
731 nonresiduary interests that are included in the measure of the
732 federal estate tax.
733 2. Any net tax apportioned to a class pursuant to this
734 paragraph shall be apportioned among each recipient in the class
735 in the proportion that the value of the interest of each bears
736 to the total value of all interests included in that class. A
737 tax may not be apportioned under this paragraph to the portion
738 of any interest applied in satisfaction of the elective share
739 whether or not included in the measure of the tax. For purposes
740 of this paragraph, if the value of the interests described in s.
741 732.2075(1) exceeds the amount of the elective share, the
742 elective share shall be treated as satisfied first from
743 interests other than those described in classes I, II, and III,
744 and to the extent that those interests are insufficient to
745 satisfy the elective share, from the interests passing to or for
746 the benefit of the surviving spouse described in classes I, II,
747 and III, beginning with those described in class I, until the
748 elective share is satisfied. This paragraph has priority over
749 paragraphs (a) and (h).
750 3. The balance of the net tax attributable to any interest
751 in protected homestead, exempt property, and the family
752 allowance determined under s. 732.403 which is not apportioned
753 under the preceding provisions of this paragraph shall be
754 apportioned to the recipients of those interests included in the
755 measure of the tax in the proportion that the value of each
756 bears to the total value of those interests included in the
757 measure of the tax.
758 (f) Construction.—For purposes of this subsection:
759 1. If the decedent’s estate is the beneficiary of a life
760 insurance policy, annuity, or contractual right included in the
761 decedent’s gross estate, or is the taker as a result of the
762 exercise or default in exercise of a general power of
763 appointment held by the decedent, that interest shall be
764 regarded as passing under the terms of the decedent’s will for
765 the purposes of paragraph (c) or by intestacy if not disposed of
766 by will. Additionally, any interest included in the measure of
767 the tax by reason of s. 2041 of the Internal Revenue Code
768 passing to the decedent’s creditors or the creditors of the
769 decedent’s estate shall be regarded as passing to the decedent’s
770 estate for the purpose of this subparagraph.
771 2. If a trust is the beneficiary of a life insurance
772 policy, annuity, or contractual right included in the decedent’s
773 gross estate, or is the taker as a result of the exercise or
774 default in exercise of a general power of appointment held by
775 the decedent, that interest shall be regarded as passing under
776 the trust for purposes of paragraph (d).
777 (g) Common instrument construction.—In the application of
778 this subsection, paragraphs (b)-(f) shall be applied to
779 apportion the net tax to the recipients under certain governing
780 instruments as if all recipients under those instruments, other
781 than the estate or revocable trust itself, were taking under a
782 common instrument. This construction applies to the following:
783 1. The decedent’s will and revocable trust if the estate is
784 a beneficiary of the revocable trust or if the revocable trust
785 is a beneficiary of the estate.
786 2. A revocable trust of the decedent and another revocable
787 trust of the decedent if either trust is the beneficiary of the
788 other trust.
789 (h) Other interests.—The net tax that is not apportioned to
790 interests under paragraphs (b)-(g), including, but not limited
791 to, the net tax attributable to interests passing by intestacy,
792 interests applied in satisfaction of the elective share pursuant
793 to s. 732.2075(2), interests passing by reason of the exercise
794 or nonexercise of a general power of appointment, jointly held
795 interests passing by survivorship, life insurance, properties in
796 which the decedent held a reversionary or revocable interest,
797 annuities, and contractual rights, shall be apportioned among
798 the recipients of the remaining interests included in the
799 measure of the tax in the proportion that the value of each such
800 interest bears to the total value of all remaining interests
801 included in the measure of the tax.
802 (i) Assessment of liability by court.—If the court finds
803 that:
804 1. It is inequitable to apportion interest or penalties, or
805 both, in the manner provided in paragraphs (a)-(h), the court
806 may assess liability for the payment thereof in the manner that
807 the court finds equitable.
808 2. The payment of any tax was not effectively directed in
809 the governing instrument pursuant to subsection (4) and that
810 such tax is not apportioned by this subsection, the court may
811 assess liability for the payment of such tax in the manner that
812 the court finds equitable.
813 (4) DIRECTION AGAINST APPORTIONMENT.—
814 (a) Except as provided in this subsection, a governing
815 instrument may not direct that taxes be paid from property other
816 than that passing under the governing instrument.
817 (b) For a direction in a governing instrument to be
818 effective to direct payment of taxes attributable to property
819 passing under the governing instrument in a manner different
820 from that provided in this section, the direction must be
821 express.
822 (c) For a direction in a governing instrument to be
823 effective to direct payment of taxes attributable to property
824 not passing under the governing instrument from property passing
825 under the governing instrument, the governing instrument must
826 expressly direct that the property passing under the governing
827 instrument bear the burden of taxation for property not passing
828 under the governing instrument. Except as provided in paragraph
829 (d), a direction in the governing instrument to the effect that
830 all taxes are to be paid from property passing under the
831 governing instrument, whether attributable to property passing
832 under the governing instrument or otherwise, shall be effective
833 to direct payment from property passing under the governing
834 instrument of taxes attributable to property not passing under
835 the governing instrument.
836 (d) In addition to satisfying the other provisions of this
837 subsection:
838 1.a. For a direction in the decedent’s will or revocable
839 trust to be effective in waiving the right of recovery provided
840 in s. 2207A of the Internal Revenue Code for the tax
841 attributable to section 2044 interests, and for any tax imposed
842 by Florida based upon such section 2044 interests, the direction
843 must expressly waive that right of recovery. An express
844 direction that property passing under the will or revocable
845 trust bear the tax imposed by s. 2044 of the Internal Revenue
846 Code is deemed an express waiver of the right of recovery
847 provided in s. 2207A of the Internal Revenue Code. A reference
848 to “qualified terminable interest property,” “QTIP,” or property
849 in which the decedent had a “qualifying income interest for
850 life” is deemed to be a reference to property upon which tax is
851 imposed by s. 2044 of the Internal Revenue Code which is subject
852 to the right of recovery provided in s. 2207A of the Internal
853 Revenue Code.
854 b. If property is included in the gross estate pursuant to
855 ss. 2041 and 2044 of the Internal Revenue Code, the property is
856 deemed included under s. 2044, and not s. 2041, for purposes of
857 allocation and apportionment of the tax.
858 2. For a direction in the decedent’s will or revocable
859 trust to be effective in waiving the right of recovery provided
860 in s. 2207B of the Internal Revenue Code for tax imposed by
861 reason of s. 2036 of the Internal Revenue Code, and any tax
862 imposed by Florida based upon s. 2036 of the Internal Revenue
863 Code, the direction must expressly waive that right of recovery.
864 An express direction that property passing under the will or
865 revocable trust bear the tax imposed by s. 2036 of the Internal
866 Revenue Code is deemed an express waiver of the right of
867 recovery provided in s. 2207B of the Internal Revenue Code. If
868 property is included in the gross estate pursuant to ss. 2036
869 and 2038 of the Internal Revenue Code, the property is deemed
870 included under s. 2038, not s. 2036, for purposes of allocation
871 and apportionment of the tax, and there is no right of recovery
872 under s. 2207B of the Internal Revenue Code.
873 3. A general statement in the decedent’s will or revocable
874 trust waiving all rights of reimbursement or recovery under the
875 Internal Revenue Code is not an express waiver of the rights of
876 recovery provided in s. 2207A or s. 2207B of the Internal
877 Revenue Code.
878 4. For a direction in a governing instrument to be
879 effective to direct payment of generation-skipping transfer tax
880 in a manner other than as provided in s. 2603 of the Internal
881 Revenue Code, and any tax imposed by Florida based on s. 2601 of
882 the Internal Revenue Code, the direction must specifically
883 reference the tax imposed by s. 2601 of the Internal Revenue
884 Code. A reference to the generation-skipping transfer tax or s.
885 2603 of the Internal Revenue Code is deemed to be a reference to
886 property upon which tax is imposed by reason of s. 2601 of the
887 Internal Revenue Code.
888 (e) If the decedent expressly directs by will the net tax
889 attributable to property over which the decedent held, a general
890 power of appointment may be determined in a manner other than as
891 provided in subsection (2) if the net tax attributable to that
892 property does not exceed the difference between the total net
893 tax determined pursuant to subsection (2), determined without
894 regard to this paragraph, and the total net tax that would have
895 been payable if the value of the property subject to such power
896 of appointment had not been included in the decedent’s gross
897 estate. If tax is attributable to one or more section 2044
898 interests pursuant to subsection (2), the net tax attributable
899 to the section 2044 interests shall be calculated before the
900 application of this paragraph unless the decedent expressly
901 directs otherwise by will.
902 (f) If the decedent’s will expressly provides that the tax
903 is to be apportioned as provided in the decedent’s revocable
904 trust by specific reference to the revocable trust, an express
905 direction in the revocable trust is deemed to be a direction
906 contained in the will as well as the revocable trust.
907 (g) An express direction in the decedent’s will to pay tax
908 from the decedent’s revocable trust by specific reference to the
909 revocable trust is effective unless a contrary express direction
910 is contained in the revocable trust.
911 (h) If governing instruments contain effective directions
912 that conflict as to payment of taxes, the most recently executed
913 tax apportionment provision controls to the extent of the
914 conflict. For the purpose of this subsection, if a will or other
915 governing instrument is amended, the date of the codicil to the
916 will or amendment to the governing instrument is regarded as the
917 date of the will or other governing instrument only if the
918 codicil or amendment contains an express tax apportionment
919 provision or an express modification of the tax apportionment
920 provision. A general statement ratifying or republishing all
921 provisions not otherwise amended does not meet this condition.
922 If the decedent’s will and another governing instrument were
923 executed on the same date, the will is deemed executed after the
924 other governing instrument. The earlier conflicting governing
925 instrument controls as to any tax remaining unpaid after the
926 application of the later conflicting governing instrument.
927 (i) A grant of permission or authority in a governing
928 instrument to request payment of tax from property passing under
929 another governing instrument is not a direction apportioning the
930 tax to the property passing under the other governing
931 instrument. A grant of permission or authority in a governing
932 instrument to pay tax attributable to property not passing under
933 the governing instrument is not a direction apportioning the tax
934 to property passing under the governing instrument.
935 (j) This section applies to any tax remaining to be paid
936 after the application of any effective express directions. An
937 effective express direction for payment of tax on specific
938 property or a type of property in a manner different from that
939 provided in this section is not effective as an express
940 direction for payment of tax on other property or other types of
941 property included in the measure of the tax.
942 (5) TRANSFER OF PROPERTY.—A personal representative or
943 fiduciary shall not be required to transfer to a recipient any
944 property reasonably anticipated to be necessary for the payment
945 of taxes. Further, the personal representative or fiduciary is
946 not required to transfer any property to the recipient until the
947 amount of the tax due from the recipient is paid by the
948 recipient. If property is transferred before final apportionment
949 of the tax, the recipient shall provide a bond or other security
950 for his or her apportioned liability in the amount and form
951 prescribed by the personal representative or fiduciary.
952 (6) ORDER OF APPORTIONMENT.—
953 (a) The personal representative may petition at any time
954 for an order of apportionment. If administration of the
955 decedent’s estate has not commenced at any time after 90 days
956 from the decedent’s death, any fiduciary may petition for an
957 order of apportionment in the court in which venue would be
958 proper for administration of the decedent’s estate. Notice of
959 the petition for order of apportionment must be served on all
960 interested persons in the manner provided for service of formal
961 notice. At any time after 6 months from the decedent’s death,
962 any recipient may petition the court for an order of
963 apportionment.
964 (b) The court shall determine all issues concerning
965 apportionment. If the tax to be apportioned has not been finally
966 determined, the court shall determine the probable tax due or to
967 become due from all interested persons, apportion the probable
968 tax, and retain jurisdiction over the parties and issues to
969 modify the order of apportionment as appropriate until after the
970 tax is finally determined.
971 (7) DEFICIENCY.—
972 (a) If the personal representative or fiduciary does not
973 have possession of sufficient property otherwise distributable
974 to the recipient to pay the tax apportioned to the recipient,
975 whether under this section, the Internal Revenue Code, or the
976 governing instrument, if applicable, the personal representative
977 or fiduciary shall recover the deficiency in tax so apportioned
978 to the recipient:
979 1. From the fiduciary in possession of the property to
980 which the tax is apportioned, if any; and
981 2. To the extent of any deficiency in collection from the
982 fiduciary, or to the extent collection from the fiduciary is
983 excused pursuant to subsection (8) and in all other cases, from
984 the recipient of the property to which the tax is apportioned,
985 unless relieved of this duty as provided in subsection (8).
986 (b) In any action to recover the tax apportioned, the order
987 of apportionment is prima facie correct.
988 (c) In any action for the enforcement of an order of
989 apportionment, the court shall award taxable costs as in
990 chancery actions, including reasonable attorney fees, and may
991 award penalties and interest on the unpaid tax in accordance
992 with equitable principles.
993 (d) This subsection does not authorize the recovery of any
994 tax from a company issuing life insurance included in the gross
995 estate, or from a bank, trust company, savings and loan
996 association, or similar institution with respect to any account
997 in the name of the decedent and any other person which passed by
998 operation of law at the decedent’s death.
999 (8) RELIEF FROM DUTY.—
1000 (a) A personal representative or fiduciary who has the duty
1001 under this section of collecting the apportioned tax from
1002 recipients may be relieved of the duty to collect the tax by an
1003 order of the court finding that:
1004 1. The estimated court costs and attorney fees in
1005 collecting the apportioned tax from a person against whom the
1006 tax has been apportioned will approximate or exceed the amount
1007 of the recovery;
1008 2. The person against whom the tax has been apportioned is
1009 a resident of a foreign country other than Canada and refuses to
1010 pay the apportioned tax on demand; or
1011 3. It is impracticable to enforce contribution of the
1012 apportioned tax against a person against whom the tax has been
1013 apportioned in view of the improbability of obtaining a judgment
1014 or the improbability of collection under any judgment that might
1015 be obtained, or otherwise.
1016 (b) A personal representative or fiduciary is not liable
1017 for failure to attempt to enforce collection if the personal
1018 representative or fiduciary reasonably believes that collection
1019 would have been economically impracticable.
1020 (9) UNCOLLECTED TAX.—Any apportioned tax that is not
1021 collected shall be reapportioned in accordance with this section
1022 as if the portion of the property to which the uncollected tax
1023 had been apportioned had been exempt.
1024 (10) CONTRIBUTION.—This section does not limit the right of
1025 any person who has paid more than the amount of the tax
1026 apportionable to that person, calculated as if all apportioned
1027 amounts would be collected, to obtain contribution from those
1028 who have not paid the full amount of the tax apportionable to
1029 them, calculated as if all apportioned amounts would be
1030 collected, and that right is hereby conferred. In any action to
1031 enforce contribution, the court shall award taxable costs as in
1032 chancery actions, including reasonable attorney fees.
1033 (11) FOREIGN TAX.—This section does not require the
1034 personal representative or fiduciary to pay any tax levied or
1035 assessed by a foreign country unless specific directions to that
1036 effect are contained in the will or other instrument under which
1037 the personal representative or fiduciary is acting.
1038 Section 8. Effective October 1, 2015, subsection (4) is
1039 added to section 736.0708, Florida Statutes, to read:
1040 736.0708 Compensation of trustee.—
1041 (4)(a) An attorney, or a person related to the attorney, is
1042 not entitled to compensation for serving as trustee if the
1043 attorney prepared or supervised the execution of the trust
1044 instrument that appoints the attorney or person related to the
1045 attorney as trustee, unless the attorney or person appointed is
1046 related to the settlor or the attorney makes the following
1047 disclosures to the settlor in writing before the trust
1048 instrument is executed:
1049 1. Unless specifically disqualified by the terms of the
1050 trust instrument, any person, regardless of his or her
1051 residence, including a family member, friend, or corporate
1052 fiduciary is eligible to serve as a trustee.
1053 2. Any person, including an attorney, who serves as a
1054 trustee is entitled to receive reasonable compensation for
1055 serving as trustee.
1056 3. Compensation payable to the trustee is in addition to
1057 any attorney fees payable to the attorney or the attorney’s firm
1058 for legal services rendered to the trustee.
1059 (b) The settlor must execute a written statement
1060 acknowledging that the disclosures required by this subsection
1061 were made before the execution of the trust instrument. The
1062 written acknowledgment must be in a separate writing from the
1063 trust instrument, but may be annexed to the trust instrument.
1064 The written acknowledgment may be executed before or after the
1065 execution of the trust instrument in which the attorney or
1066 related person is appointed as the trustee.
1067 (c) For purposes of this subsection:
1068 1. An attorney is deemed to have prepared or supervised the
1069 execution of a trust instrument if the preparation or the
1070 supervision of the execution of the trust instrument was
1071 performed by an employee or attorney employed by the same firm
1072 as the attorney at the time the trust instrument was executed.
1073 2.a. A person is “related” to an individual if, at the time
1074 the attorney prepared or supervised the execution of the trust
1075 instrument, the person is:
1076 (I) A spouse of the individual;
1077 (II) A lineal ascendant or descendant of the individual;
1078 (III) A sibling of the individual;
1079 (IV) A relative of the individual or of the individual’s
1080 spouse with whom the lawyer maintains a close, familial
1081 relationship;
1082 (V) A spouse of a person described in sub-sub-subparagraphs
1083 (I)-(IV); or
1084 (VI) A person who cohabitates with the individual.
1085 b. An employee or attorney employed by the same firm as the
1086 attorney at the time the trust instrument is executed is deemed
1087 to be related to the attorney.
1088 3. An attorney or person related to the attorney is deemed
1089 to be appointed in the trust instrument if the trust instrument
1090 provided the attorney or a person related to the attorney with
1091 the power to appoint the trustee and the attorney or person
1092 related to the attorney was appointed using that power.
1093 (d) This subsection applies to provisions appointing an
1094 attorney or a person related to the attorney as trustee,
1095 cotrustee, or as successor or alternate trustee if the person
1096 appointed is unable or unwilling to serve.
1097 (e) Other than compensation payable to the trustee, this
1098 subsection does not limit any rights or remedies that an
1099 interested person may have at law or equity.
1100 (f) The failure to obtain a written acknowledgment from the
1101 settlor under this subsection does not disqualify a trustee from
1102 serving and does not affect the validity of a trust instrument.
1103 (g) A written acknowledgment signed by the settlor that is
1104 in substantially the following form is deemed to comply with the
1105 disclosure requirements of this subsection:
1106
1107 I, ...(Name)... declare that:
1108 I have designated ...(my attorney, an attorney employed in
1109 the same law firm as my attorney, or a person related to my
1110 attorney)... as a trustee in my trust instrument dated
1111 _...(Date)....
1112 Before executing the trust, I was informed that:
1113 1. Unless specifically disqualified by the terms of the
1114 trust instrument, any person, regardless of his or her
1115 residence, including a family member, friend, or corporate
1116 fiduciary is eligible to serve as a trustee.
1117 2. Any person, including an attorney, who serves as a
1118 trustee is entitled to receive reasonable compensation for
1119 serving as trustee.
1120 3. Compensation payable to the trustee is in addition to
1121 any attorney fees payable to the attorney or the attorney’s firm
1122 for legal services rendered to the trustee.
1123
1124 ...(Settlor)...
1125
1126 ...(Dated)...
1127
1128 (h) This subsection applies to each appointment made
1129 pursuant to a trust agreement that is:
1130 1. Executed by a resident of this state on or after October
1131 1, 2015.
1132 2. Amended by a resident of this state on or after October
1133 1, 2015, if the trust agreement appoints the attorney who
1134 prepared or supervised the execution of the amendment, or a
1135 person related to such attorney, as trustee.
1136 Section 9. Effective July 1, 2015, section 736.1005,
1137 Florida Statutes, is amended to read:
1138 736.1005 Attorney attorney’s fees for services to the
1139 trust.—
1140 (1) Any attorney who has rendered services to a trust may
1141 be awarded reasonable compensation from the trust. The attorney
1142 may apply to the court for an order awarding attorney attorney’s
1143 fees and, after notice and service on the trustee and all
1144 beneficiaries entitled to an accounting under s. 736.0813, the
1145 court shall enter an order on the fee application.
1146 (2) If attorney Whenever attorney’s fees are to be paid
1147 from out of the trust under subsection (1), s. 736.1007(5)(a),
1148 or s. 733.106(4)(a), the court, in its discretion, may direct
1149 from what part of the trust the fees shall be paid.
1150 (a) All or any part of the attorney fees to be paid from
1151 the trust may be assessed against one or more persons’ part of
1152 the trust in such proportions as the court finds to be just and
1153 proper.
1154 (b) In the exercise of its discretion, the court may
1155 consider the following factors:
1156 1. The relative impact of an assessment on the estimated
1157 value of each person’s part of the trust.
1158 2. The amount of attorney fees to be assessed against a
1159 person’s part of the trust.
1160 3. The extent to which a person whose part of the trust is
1161 to be assessed, individually or through counsel, actively
1162 participated in the proceeding.
1163 4. The potential benefit or detriment to a person’s part of
1164 the trust expected from the outcome of the proceeding.
1165 5. The relative strength or weakness of the merits of the
1166 claims, defenses, or objections, if any, asserted by a person
1167 whose part of the trust is to be assessed.
1168 6. Whether a person whose part of the trust is to be
1169 assessed was a prevailing party with respect to one or more
1170 claims, defenses, or objections.
1171 7. Whether a person whose part of the trust is to be
1172 assessed unjustly caused an increase in the amount of attorney
1173 fees incurred by the trustee or another person in connection
1174 with the proceeding.
1175 8. Any other relevant fact, circumstance, or equity.
1176 (c) The court may assess a person’s part of the trust
1177 without finding that the person engaged in bad faith,
1178 wrongdoing, or frivolousness.
1179 (3) Except when a trustee’s interest may be adverse in a
1180 particular matter, the attorney shall give reasonable notice in
1181 writing to the trustee of the attorney’s retention by an
1182 interested person and the attorney’s entitlement to fees
1183 pursuant to this section. A court may reduce any fee award for
1184 services rendered by the attorney prior to the date of actual
1185 notice to the trustee, if the actual notice date is later than a
1186 date of reasonable notice. In exercising this discretion, the
1187 court may exclude compensation for services rendered after the
1188 reasonable notice date but before prior to the date of actual
1189 notice.
1190 Section 10. Effective July 1, 2015, section 736.1006,
1191 Florida Statutes, is amended to read:
1192 736.1006 Costs in trust proceedings.—
1193 (1) In all trust proceedings, costs may be awarded as in
1194 chancery actions.
1195 (2) If Whenever costs are to be paid from out of the trust
1196 under subsection (1) or s. 736.106(4)(a), the court, in its
1197 discretion, may direct from what part of the trust the costs
1198 shall be paid. All or any part of the costs to be paid from the
1199 trust may be assessed against one or more persons’ part of the
1200 trust in such proportions as the court finds to be just and
1201 proper. In the exercise of its discretion, the court may
1202 consider the factors set forth in s. 736.1005(2).
1203 Section 11. For the purpose of incorporating the amendment
1204 made by this act to section 733.817, Florida Statutes, in a
1205 reference thereto, subsection (4) of section 738.302, Florida
1206 Statutes, is reenacted to read:
1207 738.302 Apportionment of receipts and disbursements when
1208 decedent dies or income interest begins.—
1209 (4) Nothing in this section shall prevent the application
1210 of s. 733.817 to apportion tax to the income recipient under
1211 this section.
1212 Section 12. The amendments made by this act to ss. 733.212,
1213 733.2123, 733.3101, and 733.504, Florida Statutes, are remedial
1214 in nature, are intended to clarify existing law, and apply
1215 retroactively to all proceedings pending or commenced on or
1216 after the date upon which this act becomes a law.
1217 Section 13. (1) The amendment made by this act to s.
1218 733.817(1)(g) and (2)(c), Florida Statutes, is remedial in
1219 nature, is intended to clarify existing law, and applies
1220 retroactively to all proceedings pending or commenced on or
1221 after July 1, 2015, in which the apportionment of taxes has not
1222 been finally determined or agreed for the estates of decedents
1223 who die after December 31, 2004.
1224 (2) The amendment made by this act to s. 733.817(1)(e)3.,
1225 (3)(e), (3)(g), (4)(b), (4)(c), (4)(d)1.b., (4)(e), (4)(h), and
1226 (6), Florida Statutes, applies to the estates of decedents who
1227 die on or after July 1, 2015.
1228 (3) Except as provided in subsections (1) and (2), the
1229 amendment made by this act to s. 733.817, Florida Statutes, is
1230 remedial in nature, is intended to clarify existing law, and
1231 applies retroactively to all proceedings pending or commenced on
1232 or after July 1, 2015, in which the apportionment of taxes has
1233 not been finally determined or agreed and without regard to the
1234 date of the decedent’s death.
1235 Section 14. The amendments made by this act to ss. 733.106,
1236 736.1005, and 736.1006, Florida Statutes, apply to proceedings
1237 commenced on or after July 1, 2015. The law in effect on June
1238 30, 2015, applies to proceedings commenced on or before that
1239 date.
1240 Section 15. Except as otherwise expressly provided in this
1241 act, this act shall take effect upon becoming a law.