CS for CS for SB 872                             First Engrossed
       
       
       
       
       
       
       
       
       2015872e1
       
    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 to request the removal of a
   34         personal representative who files such notice;
   35         providing that a personal representative is liable for
   36         costs and attorney fees incurred in a removal
   37         proceeding if he or she is removed and should have
   38         known of the facts supporting the removal; defining
   39         the term “qualified”; amending s. 733.504, F.S.;
   40         requiring a personal representative to be removed and
   41         the letters of administration revoked if he or she was
   42         not qualified to act at the time of appointment;
   43         amending s. 733.817, F.S.; defining and redefining
   44         terms; deleting a provision that exempts an interest
   45         in protected homestead from the apportionment of
   46         taxes; providing for the payment of taxes on protected
   47         homestead family allowance and exempt property by
   48         certain other property to the extent such other
   49         property is sufficient; revising the allocation of
   50         taxes; revising the apportionment of the net tax
   51         attributable to specified interests; authorizing a
   52         court to assess liability in an equitable manner under
   53         certain circumstances; providing that a governing
   54         instrument may not direct that taxes be paid from
   55         property other than property passing under the
   56         governing instrument, except under specified
   57         conditions; requiring that direction in a governing
   58         instrument be express to apportion taxes under certain
   59         circumstances; requiring that the right of recovery
   60         provided in the Internal Revenue Code for certain
   61         taxes be expressly waived in the decedent’s will or
   62         revocable trust with certain specificity; specifying
   63         the property upon which certain tax is imposed for
   64         allocation and apportionment of certain tax; providing
   65         that a general statement in the decedent’s will or
   66         revocable trust waiving all rights of reimbursement or
   67         recovery under the Internal Revenue Code is not an
   68         express waiver of certain rights of recovery;
   69         requiring direction to specifically reference the
   70         generation-skipping transfer tax imposed by the
   71         Internal Revenue Code to direct its apportionment;
   72         authorizing, under certain circumstances, the decedent
   73         to direct by will the amount of net tax attributable
   74         to property over which the decedent held a general
   75         power of appointment under certain circumstances;
   76         providing that an express direction in a revocable
   77         trust is deemed to be a direction contained in the
   78         decedent’s will as well as the revocable trust under
   79         certain circumstances; providing that an express
   80         direction in the decedent’s will to pay tax from the
   81         decedent’s revocable trust by specific reference to
   82         the revocable trust is effective unless a contrary
   83         express direction is contained in the revocable trust;
   84         revising the resolution of conflicting directions in
   85         governing instruments with regard to payment of taxes;
   86         providing that the later express direction in the will
   87         or other governing instrument controls; providing that
   88         the date of an amendment to a will or other governing
   89         instrument is the date of the will or trust for
   90         conflict resolution only if the codicil or amendment
   91         contains an express tax apportionment provision or an
   92         express modification of the tax apportionment
   93         provision; providing that a will is deemed executed
   94         after another governing instrument if the decedent’s
   95         will and another governing instrument were executed on
   96         the same date; providing that an earlier conflicting
   97         governing instrument controls as to any tax remaining
   98         unpaid after the application of the later conflicting
   99         governing instrument; providing that a grant of
  100         permission or authority in a governing instrument to
  101         request payment of tax from property passing under
  102         another governing instrument is not a direction
  103         apportioning the tax to the property passing under the
  104         other governing instrument; providing a grant of
  105         permission or authority in a governing instrument to
  106         pay tax attributable to property not passing under the
  107         governing instrument is not a direction apportioning
  108         the tax to property passing under the governing
  109         instrument; providing application; prohibiting the
  110         requiring of a personal representative or fiduciary to
  111         transfer to a recipient property that may be used for
  112         payment of taxes; amending s. 736.1005, F.S.;
  113         authorizing the court, if attorney fees are to be paid
  114         from the trust under specified sections of law, to
  115         direct payment from a certain part of the trust;
  116         providing that fees may be assessed against one or
  117         more persons’ part of the trust in such proportions as
  118         the court finds just and proper; specifying factors
  119         that the court may consider in directing the
  120         assessment of such fees; providing that a court may
  121         assess fees without finding that a person engaged
  122         specified wrongful acts; amending s. 736.1006, F.S.;
  123         authorizing the court, if costs are to be paid from
  124         the trust under specified sections of law, to direct
  125         payment from a certain part of the trust; providing
  126         that costs may be assessed against one or more
  127         persons’ part of the trust in such proportions as the
  128         court finds just and proper; specifying factors that
  129         the court may consider in directing the assessment of
  130         such costs; providing that specified provisions of the
  131         act are remedial and intended to clarify existing law;
  132         providing for retroactive and prospective application
  133         of specified portions of the act; providing an
  134         effective date.
  135          
  136  Be It Enacted by the Legislature of the State of Florida:
  137  
  138         Section 1. Section 733.106, Florida Statutes, is amended to
  139  read:
  140         733.106 Costs and attorney attorney’s fees.—
  141         (1) In all probate proceedings, costs may be awarded as in
  142  chancery actions.
  143         (2) A person nominated as personal representative, or any
  144  proponent of a will if the person so nominated does not act
  145  within a reasonable time, if in good faith justified in offering
  146  the will in due form for probate, shall receive costs and
  147  attorney attorney’s fees from the estate even though probate is
  148  denied or revoked.
  149         (3) Any attorney who has rendered services to an estate may
  150  be awarded reasonable compensation from the estate.
  151         (4) If When costs and attorney attorney’s fees are to be
  152  paid from the estate under this section, s. 733.6171(4), s.
  153  736.1005, or s. 736.1006, the court, in its discretion, may
  154  direct from what part of the estate they shall be paid.
  155         (a) If the court directs an assessment against a person’s
  156  part of the estate and such part is insufficient to fully pay
  157  the assessment, the court may direct payment from the person’s
  158  part of a trust, if any, if a pourover will is involved and the
  159  matter is interrelated with the trust.
  160         (b) All or any part of the costs and attorney fees to be
  161  paid from the estate may be assessed against one or more
  162  persons’ part of the estate in such proportions as the court
  163  finds to be just and proper.
  164         (c) In the exercise of its discretion, the court may
  165  consider the following factors:
  166         1. The relative impact of an assessment on the estimated
  167  value of each person’s part of the estate.
  168         2. The amount of costs and attorney fees to be assessed
  169  against a person’s part of the estate.
  170         3. The extent to which a person whose part of the estate is
  171  to be assessed, individually or through counsel, actively
  172  participated in the proceeding.
  173         4. The potential benefit or detriment to a person’s part of
  174  the estate expected from the outcome of the proceeding.
  175         5. The relative strength or weakness of the merits of the
  176  claims, defenses, or objections, if any, asserted by a person
  177  whose part of the estate is to be assessed.
  178         6. Whether a person whose part of the estate is to be
  179  assessed was a prevailing party with respect to one or more
  180  claims, defenses, or objections.
  181         7. Whether a person whose part of the estate is to be
  182  assessed unjustly caused an increase in the amount of costs and
  183  attorney fees incurred by the personal representative or another
  184  interested person in connection with the proceeding.
  185         8. Any other relevant fact, circumstance, or equity.
  186         (d) The court may assess a person’s part of the estate
  187  without finding that the person engaged in bad faith,
  188  wrongdoing, or frivolousness.
  189         Section 2. Paragraph (c) of subsection (2) and subsection
  190  (3) of section 733.212, Florida Statutes, are amended to read:
  191         733.212 Notice of administration; filing of objections.—
  192         (2) The notice shall state:
  193         (c) That any interested person on whom a copy of the notice
  194  of administration is served must file on or before the date that
  195  is 3 months after the date of service of a copy of the notice of
  196  administration on that person any objection that challenges the
  197  validity of the will, the qualifications of the personal
  198  representative, the venue, or the jurisdiction of the court. The
  199  3-month time period may only be extended for estoppel based upon
  200  a misstatement by the personal representative regarding the time
  201  period within which an objection must be filed. The time period
  202  may not be extended for any other reason, including affirmative
  203  representation, failure to disclose information, or misconduct
  204  by the personal representative or any other person. Unless
  205  sooner barred by subsection (3), all objections to the validity
  206  of a will, venue, or the jurisdiction of the court must be filed
  207  no later than the earlier of the entry of an order of final
  208  discharge of the personal representative or 1 year after service
  209  of the notice of administration.
  210         (3) Any interested person on whom a copy of the notice of
  211  administration is served must object to the validity of the
  212  will, the qualifications of the personal representative, the
  213  venue, or the jurisdiction of the court by filing a petition or
  214  other pleading requesting relief in accordance with the Florida
  215  Probate Rules on or before the date that is 3 months after the
  216  date of service of a copy of the notice of administration on the
  217  objecting person, or those objections are forever barred. The 3
  218  month time period may only be extended for estoppel based upon a
  219  misstatement by the personal representative regarding the time
  220  period within which an objection must be filed. The time period
  221  may not be extended for any other reason, including affirmative
  222  representation, failure to disclose information, or misconduct
  223  by the personal representative or any other person. Unless
  224  sooner barred by this subsection, all objections to the validity
  225  of a will, venue, or the jurisdiction of the court must be filed
  226  no later than the earlier of the entry of an order of final
  227  discharge of the personal representative or 1 year after service
  228  of the notice of administration.
  229         Section 3. Section 733.2123, Florida Statutes, is amended
  230  to read:
  231         733.2123 Adjudication before issuance of letters.—A
  232  petitioner may serve formal notice of the petition for
  233  administration on interested persons. A person who is served
  234  with such notice before the issuance of letters or who has
  235  waived notice may not challenge the validity of the will,
  236  testacy of the decedent, qualifications of the personal
  237  representative, venue, or jurisdiction of the court, except in
  238  the proceedings before issuance of letters.
  239         Section 4. Section 733.3101, Florida Statutes, is amended
  240  to read:
  241         733.3101 Personal representative not qualified.—
  242         (1) A personal representative shall resign immediately if
  243  the personal representative knows that he or she was not
  244  qualified to act at the time of appointment.
  245         (2) Any time a personal representative, who was qualified
  246  to act at the time of appointment, knows or should have known
  247  that he or she would not be qualified for appointment if
  248  application for appointment were then made, the personal
  249  representative shall promptly file and serve a notice setting
  250  forth the reasons. The personal representative’s notice shall
  251  state that any interested person may petition to remove the
  252  personal representative. An interested person on whom a copy of
  253  the personal representative’s notice is served may file a
  254  petition requesting the personal representative’s removal within
  255  30 days after the date on which such notice is served.
  256         (3) A personal representative who fails to comply with this
  257  section shall be personally liable for costs, including attorney
  258  attorney’s fees, incurred in any removal proceeding, if the
  259  personal representative is removed. This liability extends to a
  260  personal representative who does not know, but should have
  261  known, of the facts that would have required him or her to
  262  resign under subsection (1) or to file and serve notice under
  263  subsection (2). This liability shall be cumulative to any other
  264  provided by law.
  265         (4) As used in this section, the term “qualified” means
  266  that the personal representative is qualified under ss. 733.302
  267  -733.305.
  268         Section 5. Section 733.504, Florida Statutes, is amended to
  269  read:
  270         733.504 Removal of personal representative; causes for
  271  removal.—A personal representative shall be removed and the
  272  letters revoked if he or she was not qualified to act at the
  273  time of appointment. A personal representative may be removed
  274  and the letters revoked for any of the following causes, and the
  275  removal shall be in addition to any penalties prescribed by law:
  276         (1) Adjudication that the personal representative is
  277  incapacitated.
  278         (2) Physical or mental incapacity rendering the personal
  279  representative incapable of the discharge of his or her duties.
  280         (3) Failure to comply with any order of the court, unless
  281  the order has been superseded on appeal.
  282         (4) Failure to account for the sale of property or to
  283  produce and exhibit the assets of the estate when so required.
  284         (5) Wasting or maladministration of the estate.
  285         (6) Failure to give bond or security for any purpose.
  286         (7) Conviction of a felony.
  287         (8) Insolvency of, or the appointment of a receiver or
  288  liquidator for, any corporate personal representative.
  289         (9) Holding or acquiring conflicting or adverse interests
  290  against the estate that will or may interfere with the
  291  administration of the estate as a whole. This cause of removal
  292  shall not apply to the surviving spouse because of the exercise
  293  of the right to the elective share, family allowance, or
  294  exemptions, as provided elsewhere in this code.
  295         (10) Revocation of the probate of the decedent’s will that
  296  authorized or designated the appointment of the personal
  297  representative.
  298         (11) Removal of domicile from Florida, if domicile was a
  299  requirement of initial appointment.
  300         (12) The personal representative was qualified to act at
  301  the time of appointment, but is would not now be entitled to
  302  appointment.
  303  
  304  Removal under this section is in addition to any penalties
  305  prescribed by law.
  306         Section 6. Section 733.817, Florida Statutes, is amended to
  307  read:
  308         (Substantial rewording of section. See
  309         s. 733.817, F.S., for present text.)
  310         733.817 Apportionment of estate taxes.—
  311         (1) DEFINITIONS.—As used in this section, the term:
  312         (a) “Fiduciary” means a person, other than the personal
  313  representative in possession of property included in the measure
  314  of the tax, who is liable to the applicable taxing authority for
  315  payment of the entire tax to the extent of the value of the
  316  property in possession.
  317         (b) “Generation-skipping transfer tax” means the
  318  generation-skipping transfer tax imposed by chapter 13 of the
  319  Internal Revenue Code on direct skips of interests includible in
  320  the federal gross estate or a corresponding tax imposed by any
  321  state or country or political subdivision of the foregoing. The
  322  term does not include the generation-skipping transfer tax on
  323  taxable distributions, taxable terminations, or any other
  324  generation-skipping transfer. The terms direct skip, taxable
  325  distribution,” and “taxable termination” have the same meanings
  326  as provided in s. 2612 of the Internal Revenue Code.
  327         (c) “Governing instrument” means a will, trust instrument,
  328  or any other document that controls the transfer of property on
  329  the occurrence of the event with respect to which the tax is
  330  being levied.
  331         (d) “Gross estate” means the gross estate, as determined by
  332  the Internal Revenue Code with respect to the federal estate tax
  333  and the Florida estate tax, and as that concept is otherwise
  334  determined by the estate, inheritance, or death tax laws of the
  335  particular state, country, or political subdivision whose tax is
  336  being apportioned.
  337         (e) “Included in the measure of the tax” means for each
  338  separate tax that an interest may incur, only interests included
  339  in the measure of that particular tax are considered. As used in
  340  this section, the term does not include:
  341         1. Any interest, whether passing under the will or not, to
  342  the extent the interest is initially deductible from the gross
  343  estate, without regard to any subsequent reduction of the
  344  deduction by reason of the charge of any part of the applicable
  345  tax to the interest. If an election is required for
  346  deductibility, an interest is not initially deductible unless
  347  the election for deductibility is allowed.
  348         2. Interests or amounts that are not included in the gross
  349  estate but are included in the amount upon which the applicable
  350  tax is computed, such as adjusted taxable gifts pursuant to s.
  351  2001 of the Internal Revenue Code.
  352         3. Gift taxes included in the gross estate pursuant to s.
  353  2035 of the Internal Revenue Code and the portion of any inter
  354  vivos transfer included in the gross estate pursuant to s. 529
  355  of the Internal Revenue Code, notwithstanding inclusion in the
  356  gross estate.
  357         (f) “Internal Revenue Code” means the Internal Revenue Code
  358  of 1986, as amended.
  359         (g) “Net tax” means the net tax payable to the particular
  360  state, country, or political subdivision whose tax is being
  361  apportioned, after taking into account all credits against the
  362  applicable tax except as provided in this section. With respect
  363  to the federal estate tax, net tax is determined after taking
  364  into account all credits against the tax except for the credit
  365  for foreign death taxes and except for the credit or deduction
  366  for state taxes imposed by states other than this state.
  367         (h) “Nonresiduary devise” means any devise that is not a
  368  residuary devise.
  369         (i) “Nonresiduary interest,” in connection with a trust,
  370  means any interest in a trust which is not a residuary interest.
  371         (j) “Recipient” means, with respect to property or an
  372  interest in property included in the gross estate, an heir at
  373  law in an intestate estate, devisee in a testate estate,
  374  beneficiary of a trust, beneficiary of a life insurance policy,
  375  annuity, or other contractual right, surviving tenant, taker as
  376  a result of the exercise or in default of the exercise of a
  377  general power of appointment, person who receives or is to
  378  receive the property or an interest in the property, or person
  379  in possession of the property, other than a creditor.
  380         (k)“Residuary devise” has the meaning in s. 731.201.
  381         (l) “Residuary interest,” in connection with a trust, means
  382  an interest in the assets of a trust which remain after
  383  provision for any distribution that is to be satisfied by
  384  reference to a specific property or type of property, fund, sum,
  385  or statutory amount.
  386         (m) “Revocable trust” means a trust as described in s.
  387  733.707(3).
  388         (n) “Section 2044 interest” means an interest included in
  389  the measure of the tax by reason of s. 2044 of the Internal
  390  Revenue Code.
  391         (o) “State” means any state, territory, or possession of
  392  the United States, the District of Columbia, or the Commonwealth
  393  of Puerto Rico.
  394         (p) “Tax” means any estate tax, inheritance tax,
  395  generation-skipping transfer tax, or other tax levied or
  396  assessed under the laws of this or any other state, the United
  397  States, any other country, or any political subdivision of the
  398  foregoing, as finally determined, which is imposed as a result
  399  of the death of the decedent. The term also includes any
  400  interest or penalties imposed in addition to the tax. Unless the
  401  context indicates otherwise, the term means each separate tax.
  402  The term does not include any additional estate tax imposed by
  403  s. 2032A(c) or s. 2057(f) of the Internal Revenue Code or a
  404  corresponding tax imposed by any state or country or political
  405  subdivision of the foregoing. The additional estate tax imposed
  406  shall be apportioned as provided in s. 2032A or s. 2057 of the
  407  Internal Revenue Code.
  408         (q) “Temporary interest” means an interest in income or an
  409  estate for a specific period of time, for life, or for some
  410  other period controlled by reference to extrinsic events,
  411  whether or not in trust.
  412         (r) “Tentative Florida tax” with respect to any property
  413  means the net Florida estate tax that would have been
  414  attributable to that property if no tax were payable to any
  415  other state in respect of that property.
  416         (s) “Value” means the pecuniary worth of the interest
  417  involved as finally determined for purposes of the applicable
  418  tax after deducting any debt, expense, or other deduction
  419  chargeable to it for which a deduction was allowed in
  420  determining the amount of the applicable tax. A lien or other
  421  encumbrance is not regarded as chargeable to a particular
  422  interest to the extent that it will be paid from other
  423  interests. The value of an interest is not reduced by reason of
  424  the charge against it of any part of the tax, except as provided
  425  in paragraph (3)(a).
  426         (2) ALLOCATION OF TAX.—Except as effectively directed in
  427  the governing instrument pursuant to subsection (4), the net tax
  428  attributable to the interests included in the measure of each
  429  tax shall be determined by the proportion that the value of each
  430  interest included in the measure of the tax bears to the total
  431  value of all interests included in the measure of the tax.
  432  Notwithstanding the foregoing provision of this subsection and
  433  except as effectively directed in the governing instrument:
  434         (a) The net tax attributable to section 2044 interests
  435  shall be determined in the manner provided for the federal
  436  estate tax in s. 2207A of the Internal Revenue Code, and the
  437  amount so determined shall be deducted from the tax to determine
  438  the net tax attributable to all other interests included in the
  439  measure of the tax.
  440         (b) The foreign tax credit allowed with respect to the
  441  federal estate tax shall be allocated among the recipients of
  442  interests finally charged with the payment of the foreign tax in
  443  reduction of any federal estate tax chargeable to the recipients
  444  of the foreign interests, whether or not any federal estate tax
  445  is attributable to the foreign interests. Any excess of the
  446  foreign tax credit shall be applied to reduce proportionately
  447  the net amount of federal estate tax chargeable to the remaining
  448  recipients of the interests included in the measure of the
  449  federal estate tax.
  450         (c) The reduction in the net tax attributable to the
  451  deduction for state death taxes allowed by s. 2058 of the
  452  Internal Revenue Code shall be allocated to the recipients of
  453  the interests that produced the deduction. For this purpose, the
  454  reduction in the net tax shall be calculated in the manner
  455  provided for interests other than those described in paragraph
  456  (a).
  457         (d) The reduction in the Florida tax, if one is imposed, on
  458  the estate of a Florida resident for tax paid to another state
  459  shall be allocated as follows:
  460         1. If the net tax paid to another state is greater than or
  461  equal to the tentative Florida tax attributable to the property
  462  subject to tax in the other state, none of the Florida tax shall
  463  be attributable to that property.
  464         2. If the net tax paid to another state is less than the
  465  tentative Florida tax attributable to the property subject to
  466  tax in the other state, the net Florida tax attributable to the
  467  property subject to tax in the other state shall be the excess
  468  of the amount of the tentative Florida tax attributable to the
  469  property over the net tax payable to the other state with
  470  respect to the property.
  471         3. Any remaining net Florida tax shall be attributable to
  472  property included in the measure of the Florida tax exclusive of
  473  the property subject to tax in another state.
  474         4. The net federal tax attributable to the property subject
  475  to tax in the other state shall be determined as if the property
  476  were located in that state.
  477         (e) The net tax attributable to a temporary interest, if
  478  any, is regarded as attributable to the principal that supports
  479  the temporary interest.
  480         (3)APPORTIONMENT OF TAX.—Except as otherwise effectively
  481  directed in the governing instrument pursuant to subsection (4),
  482  the net tax attributable to each interest shall be apportioned
  483  as follows:
  484         (a)Generation-skipping transfer tax.—Any federal or state
  485  generation-skipping transfer tax shall be apportioned as
  486  provided in s. 2603 of the Internal Revenue Code after the
  487  application of the remaining provisions of this subsection to
  488  taxes other than the generation-skipping transfer tax.
  489         (b)Section 2044 interests.—The net tax attributable to
  490  section 2044 interests shall be apportioned among the recipients
  491  of the section 2044 interests in the proportion that the value
  492  of each section 2044 interest bears to the total of all section
  493  2044 interests. The net tax apportioned by this paragraph to
  494  section 2044 interests that pass in the manner described in
  495  paragraph (c) or paragraph (d) shall be apportioned to the
  496  section 2044 interests in the manner described in those
  497  paragraphs before the apportionment of the net tax attributable
  498  to the other interests passing as provided in those paragraphs.
  499  The net tax attributable to the interests other than the section
  500  2044 interests which pass in the manner described in paragraph
  501  (c) or paragraph (d) shall be apportioned only to such other
  502  interests pursuant to those paragraphs.
  503         (c)Wills.—The net tax attributable to property passing
  504  under the decedent’s will shall be apportioned in the following
  505  order of priority:
  506         1. The net tax attributable to nonresiduary devises shall
  507  be charged to and paid from the residuary estate, whether or not
  508  all interests in the residuary estate are included in the
  509  measure of the tax. If the residuary estate is insufficient to
  510  pay the net tax attributable to all nonresiduary devises, the
  511  balance of the net tax attributable to nonresiduary devises
  512  shall be apportioned among the recipients of the nonresiduary
  513  devises in the proportion that the value of each nonresiduary
  514  devise included in the measure of the tax bears to the total of
  515  all nonresiduary devises included in the measure of the tax.
  516         2. The net tax attributable to residuary devises shall be
  517  apportioned among the recipients of the residuary devises
  518  included in the measure of the tax in the proportion that the
  519  value of each residuary devise included in the measure of the
  520  tax bears to the total of all residuary devises included in the
  521  measure of the tax. If the residuary estate is insufficient to
  522  pay the net tax attributable to all residuary devises, the
  523  balance of the net tax attributable to residuary devises shall
  524  be apportioned among the recipients of the nonresiduary devises
  525  in the proportion that the value of each nonresiduary devise
  526  included in the measure of the tax bears to the total of all
  527  nonresiduary devises included in the measure of the tax.
  528         (d) Trusts.—The net tax attributable to property passing
  529  under the terms of any trust other than a trust created in the
  530  decedent’s will shall be apportioned in the following order of
  531  priority:
  532         1. The net tax attributable to nonresiduary interests of
  533  the trust shall be charged to and paid from the residuary
  534  portion of the trust, whether or not all interests in the
  535  residuary portion are included in the measure of the tax. If the
  536  residuary portion is insufficient to pay the net tax
  537  attributable to all nonresiduary interests, the balance of the
  538  net tax attributable to nonresiduary interests shall be
  539  apportioned among the recipients of the nonresiduary interests
  540  in the proportion that the value of each nonresiduary interest
  541  included in the measure of the tax bears to the total of all
  542  nonresiduary interests included in the measure of the tax.
  543         2. The net tax attributable to residuary interests of the
  544  trust shall be apportioned among the recipients of the residuary
  545  interests of the trust included in the measure of the tax in the
  546  proportion that the value of each residuary interest included in
  547  the measure of the tax bears to the total of all residuary
  548  interests of the trust included in the measure of the tax. If
  549  the residuary portion is insufficient to pay the net tax
  550  attributable to all residuary interests, the balance of the net
  551  tax attributable to residuary interests shall be apportioned
  552  among the recipients of the nonresiduary interests in the
  553  proportion that the value of each nonresiduary interest included
  554  in the measure of the tax bears to the total of all nonresiduary
  555  interests included in the measure of the tax.
  556  
  557  Except as provided in paragraph (g), this paragraph applies
  558  separately for each trust.
  559         (e) Protected homestead, exempt property, and family
  560  allowance.
  561         1. The net tax attributable to an interest in protected
  562  homestead, exempt property, and the family allowance determined
  563  under s. 732.403 shall be apportioned against the recipients of
  564  other interests in the estate or passing under any revocable
  565  trust in the following order of priority:
  566         a. Class I.—Recipients of interests passing by intestacy
  567  that are included in the measure of the federal estate tax.
  568         b. Class II.—Recipients of residuary devises, residuary
  569  interests, and pretermitted shares under ss. 732.301 and 732.302
  570  that are included in the measure of the federal estate tax.
  571         c. Class III.—Recipients of nonresiduary devises and
  572  nonresiduary interests that are included in the measure of the
  573  federal estate tax.
  574         2. Any net tax apportioned to a class pursuant to this
  575  paragraph shall be apportioned among each recipient in the class
  576  in the proportion that the value of the interest of each bears
  577  to the total value of all interests included in that class. A
  578  tax may not be apportioned under this paragraph to the portion
  579  of any interest applied in satisfaction of the elective share
  580  whether or not included in the measure of the tax. For purposes
  581  of this paragraph, if the value of the interests described in s.
  582  732.2075(1) exceeds the amount of the elective share, the
  583  elective share shall be treated as satisfied first from
  584  interests other than those described in classes I, II, and III,
  585  and to the extent that those interests are insufficient to
  586  satisfy the elective share, from the interests passing to or for
  587  the benefit of the surviving spouse described in classes I, II,
  588  and III, beginning with those described in class I, until the
  589  elective share is satisfied. This paragraph has priority over
  590  paragraphs (a) and (h).
  591         3. The balance of the net tax attributable to any interest
  592  in protected homestead, exempt property, and the family
  593  allowance determined under s. 732.403 which is not apportioned
  594  under the preceding provisions of this paragraph shall be
  595  apportioned to the recipients of those interests included in the
  596  measure of the tax in the proportion that the value of each
  597  bears to the total value of those interests included in the
  598  measure of the tax.
  599         (f) Construction.—For purposes of this subsection:
  600         1. If the decedent’s estate is the beneficiary of a life
  601  insurance policy, annuity, or contractual right included in the
  602  decedent’s gross estate, or is the taker as a result of the
  603  exercise or default in exercise of a general power of
  604  appointment held by the decedent, that interest shall be
  605  regarded as passing under the terms of the decedent’s will for
  606  the purposes of paragraph (c) or by intestacy if not disposed of
  607  by will. Additionally, any interest included in the measure of
  608  the tax by reason of s. 2041 of the Internal Revenue Code
  609  passing to the decedent’s creditors or the creditors of the
  610  decedent’s estate shall be regarded as passing to the decedent’s
  611  estate for the purpose of this subparagraph.
  612         2. If a trust is the beneficiary of a life insurance
  613  policy, annuity, or contractual right included in the decedent’s
  614  gross estate, or is the taker as a result of the exercise or
  615  default in exercise of a general power of appointment held by
  616  the decedent, that interest shall be regarded as passing under
  617  the trust for purposes of paragraph (d).
  618         (g) Common instrument construction.In the application of
  619  this subsection, paragraphs (b)-(f) shall be applied to
  620  apportion the net tax to the recipients under certain governing
  621  instruments as if all recipients under those instruments, other
  622  than the estate or revocable trust itself, were taking under a
  623  common instrument. This construction applies to the following:
  624         1. The decedent’s will and revocable trust if the estate is
  625  a beneficiary of the revocable trust or if the revocable trust
  626  is a beneficiary of the estate.
  627         2. A revocable trust of the decedent and another revocable
  628  trust of the decedent if either trust is the beneficiary of the
  629  other trust.
  630         (h) Other interests.—The net tax that is not apportioned to
  631  interests under paragraphs (b)-(g), including, but not limited
  632  to, the net tax attributable to interests passing by intestacy,
  633  interests applied in satisfaction of the elective share pursuant
  634  to s. 732.2075(2), interests passing by reason of the exercise
  635  or nonexercise of a general power of appointment, jointly held
  636  interests passing by survivorship, life insurance, properties in
  637  which the decedent held a reversionary or revocable interest,
  638  annuities, and contractual rights, shall be apportioned among
  639  the recipients of the remaining interests included in the
  640  measure of the tax in the proportion that the value of each such
  641  interest bears to the total value of all remaining interests
  642  included in the measure of the tax.
  643         (i) Assessment of liability by court.—If the court finds
  644  that:
  645         1. It is inequitable to apportion interest or penalties, or
  646  both, in the manner provided in paragraphs (a)-(h), the court
  647  may assess liability for the payment thereof in the manner that
  648  the court finds equitable.
  649         2. The payment of any tax was not effectively directed in
  650  the governing instrument pursuant to subsection (4) and that
  651  such tax is not apportioned by this subsection, the court may
  652  assess liability for the payment of such tax in the manner that
  653  the court finds equitable.
  654         (4) DIRECTION AGAINST APPORTIONMENT.—
  655         (a) Except as provided in this subsection, a governing
  656  instrument may not direct that taxes be paid from property other
  657  than that passing under the governing instrument.
  658         (b) For a direction in a governing instrument to be
  659  effective to direct payment of taxes attributable to property
  660  passing under the governing instrument in a manner different
  661  from that provided in this section, the direction must be
  662  express.
  663         (c) For a direction in a governing instrument to be
  664  effective to direct payment of taxes attributable to property
  665  not passing under the governing instrument from property passing
  666  under the governing instrument, the governing instrument must
  667  expressly direct that the property passing under the governing
  668  instrument bear the burden of taxation for property not passing
  669  under the governing instrument. Except as provided in paragraph
  670  (d), a direction in the governing instrument to the effect that
  671  all taxes are to be paid from property passing under the
  672  governing instrument whether attributable to property passing
  673  under the governing instrument or otherwise shall be effective
  674  to direct payment from property passing under the governing
  675  instrument of taxes attributable to property not passing under
  676  the governing instrument.
  677         (d) In addition to satisfying the other provisions of this
  678  subsection:
  679         1.a. For a direction in the decedent’s will or revocable
  680  trust to be effective in waiving the right of recovery provided
  681  in s. 2207A of the Internal Revenue Code for the tax
  682  attributable to section 2044 interests, and for any tax imposed
  683  by Florida based upon such section 2044 interests, the direction
  684  must expressly waive that right of recovery. An express
  685  direction that property passing under the will or revocable
  686  trust bear the tax imposed by s. 2044 of the Internal Revenue
  687  Code is deemed an express waiver of the right of recovery
  688  provided in s. 2207A of the Internal Revenue Code. A reference
  689  to “qualified terminable interest property,” “QTIP,” or property
  690  in which the decedent had a “qualifying income interest for
  691  life” is deemed to be a reference to property upon which tax is
  692  imposed by s. 2044 of the Internal Revenue Code which is subject
  693  to the right of recovery provided in s. 2207A of the Internal
  694  Revenue Code.
  695         b. If property is included in the gross estate pursuant to
  696  ss. 2041 and 2044 of the Internal Revenue Code, the property is
  697  deemed included under s. 2044, and not s. 2041, for purposes of
  698  allocation and apportionment of the tax.
  699         2. For a direction in the decedent’s will or revocable
  700  trust to be effective in waiving the right of recovery provided
  701  in s. 2207B of the Internal Revenue Code for tax imposed by
  702  reason of s. 2036 of the Internal Revenue Code, and any tax
  703  imposed by Florida based upon s. 2036 of the Internal Revenue
  704  Code, the direction must expressly waive that right of recovery.
  705  An express direction that property passing under the will or
  706  revocable trust bear the tax imposed by s. 2036 of the Internal
  707  Revenue Code is deemed an express waiver of the right of
  708  recovery provided in s. 2207B of the Internal Revenue Code. If
  709  property is included in the gross estate pursuant to ss. 2036
  710  and 2038 of the Internal Revenue Code, the property is deemed
  711  included under s. 2038, not s. 2036, for purposes of allocation
  712  and apportionment of the tax, and there is no right of recovery
  713  under s. 2207B of the Internal Revenue Code.
  714         3. A general statement in the decedent’s will or revocable
  715  trust waiving all rights of reimbursement or recovery under the
  716  Internal Revenue Code is not an express waiver of the rights of
  717  recovery provided in s. 2207A or s. 2207B of the Internal
  718  Revenue Code.
  719         4. For a direction in a governing instrument to be
  720  effective to direct payment of generation-skipping transfer tax
  721  in a manner other than as provided in s. 2603 of the Internal
  722  Revenue Code, and any tax imposed by Florida based on s. 2601 of
  723  the Internal Revenue Code, the direction must specifically
  724  reference the tax imposed by s. 2601 of the Internal Revenue
  725  Code. A reference to the generation-skipping transfer tax or s.
  726  2603 of the Internal Revenue Code is deemed to be a reference to
  727  property upon which tax is imposed by reason of s. 2601 of the
  728  Internal Revenue Code.
  729         (e) If the decedent expressly directs by will, the net tax
  730  attributable to property over which the decedent held a general
  731  power of appointment may be determined in a manner other than as
  732  provided in subsection (2) if the net tax attributable to that
  733  property does not exceed the difference between the total net
  734  tax determined pursuant to subsection (2), determined without
  735  regard to this paragraph, and the total net tax that would have
  736  been payable if the value of the property subject to such power
  737  of appointment had not been included in the decedent’s gross
  738  estate. If tax is attributable to one or more section 2044
  739  interests pursuant to subsection (2), the net tax attributable
  740  to the section 2044 interests shall be calculated before the
  741  application of this paragraph unless the decedent expressly
  742  directs otherwise by will.
  743         (f) If the decedent’s will expressly provides that the tax
  744  is to be apportioned as provided in the decedent’s revocable
  745  trust by specific reference to the revocable trust, an express
  746  direction in the revocable trust is deemed to be a direction
  747  contained in the will as well as the revocable trust.
  748         (g) An express direction in the decedent’s will to pay tax
  749  from the decedent’s revocable trust by specific reference to the
  750  revocable trust is effective unless a contrary express direction
  751  is contained in the revocable trust.
  752         (h) If governing instruments contain effective directions
  753  that conflict as to payment of taxes, the most recently executed
  754  tax apportionment provision controls to the extent of the
  755  conflict. For the purpose of this subsection, if a will or other
  756  governing instrument is amended, the date of the codicil to the
  757  will or amendment to the governing instrument is regarded as the
  758  date of the will or other governing instrument only if the
  759  codicil or amendment contains an express tax apportionment
  760  provision or an express modification of the tax apportionment
  761  provision. A general statement ratifying or republishing all
  762  provisions not otherwise amended does not meet this condition.
  763  If the decedent’s will and another governing instrument were
  764  executed on the same date, the will is deemed executed after the
  765  other governing instrument. The earlier conflicting governing
  766  instrument controls as to any tax remaining unpaid after the
  767  application of the later conflicting governing instrument.
  768         (i) A grant of permission or authority in a governing
  769  instrument to request payment of tax from property passing under
  770  another governing instrument is not a direction apportioning the
  771  tax to the property passing under the other governing
  772  instrument. A grant of permission or authority in a governing
  773  instrument to pay tax attributable to property not passing under
  774  the governing instrument is not a direction apportioning the tax
  775  to property passing under the governing instrument.
  776         (j) This section applies to any tax remaining to be paid
  777  after the application of any effective express directions. An
  778  effective express direction for payment of tax on specific
  779  property or a type of property in a manner different from that
  780  provided in this section is not effective as an express
  781  direction for payment of tax on other property or other types of
  782  property included in the measure of the tax.
  783         (5) TRANSFER OF PROPERTY.—A personal representative or
  784  fiduciary shall not be required to transfer to a recipient any
  785  property reasonably anticipated to be necessary for the payment
  786  of taxes. Further, the personal representative or fiduciary is
  787  not required to transfer any property to the recipient until the
  788  amount of the tax due from the recipient is paid by the
  789  recipient. If property is transferred before final apportionment
  790  of the tax, the recipient shall provide a bond or other security
  791  for his or her apportioned liability in the amount and form
  792  prescribed by the personal representative or fiduciary.
  793         (6) ORDER OF APPORTIONMENT.—
  794         (a) The personal representative may petition at any time
  795  for an order of apportionment. If administration of the
  796  decedent’s estate has not commenced at any time after 90 days
  797  from the decedent’s death, any fiduciary may petition for an
  798  order of apportionment in the court in which venue would be
  799  proper for administration of the decedent’s estate. Notice of
  800  the petition for order of apportionment must be served on all
  801  interested persons in the manner provided for service of formal
  802  notice. At any time after 6 months from the decedent’s death,
  803  any recipient may petition the court for an order of
  804  apportionment.
  805         (b) The court shall determine all issues concerning
  806  apportionment. If the tax to be apportioned has not been finally
  807  determined, the court shall determine the probable tax due or to
  808  become due from all interested persons, apportion the probable
  809  tax, and retain jurisdiction over the parties and issues to
  810  modify the order of apportionment as appropriate until after the
  811  tax is finally determined.
  812         (7) DEFICIENCY.—
  813         (a) If the personal representative or fiduciary does not
  814  have possession of sufficient property otherwise distributable
  815  to the recipient to pay the tax apportioned to the recipient,
  816  whether under this section, the Internal Revenue Code, or the
  817  governing instrument, if applicable, the personal representative
  818  or fiduciary shall recover the deficiency in tax so apportioned
  819  to the recipient:
  820         1. From the fiduciary in possession of the property to
  821  which the tax is apportioned, if any; and
  822         2. To the extent of any deficiency in collection from the
  823  fiduciary, or to the extent collection from the fiduciary is
  824  excused pursuant to subsection (8) and in all other cases, from
  825  the recipient of the property to which the tax is apportioned,
  826  unless relieved of this duty as provided in subsection (8).
  827         (b) In any action to recover the tax apportioned, the order
  828  of apportionment is prima facie correct.
  829         (c) In any action for the enforcement of an order of
  830  apportionment, the court shall award taxable costs as in
  831  chancery actions, including reasonable attorney fees, and may
  832  award penalties and interest on the unpaid tax in accordance
  833  with equitable principles.
  834         (d) This subsection does not authorize the recovery of any
  835  tax from a company issuing life insurance included in the gross
  836  estate, or from a bank, trust company, savings and loan
  837  association, or similar institution with respect to any account
  838  in the name of the decedent and any other person which passed by
  839  operation of law at the decedent’s death.
  840         (8) RELIEF FROM DUTY.—
  841         (a) A personal representative or fiduciary who has the duty
  842  under this section of collecting the apportioned tax from
  843  recipients may be relieved of the duty to collect the tax by an
  844  order of the court finding that:
  845         1. The estimated court costs and attorney fees in
  846  collecting the apportioned tax from a person against whom the
  847  tax has been apportioned will approximate or exceed the amount
  848  of the recovery;
  849         2. The person against whom the tax has been apportioned is
  850  a resident of a foreign country other than Canada and refuses to
  851  pay the apportioned tax on demand; or
  852         3. It is impracticable to enforce contribution of the
  853  apportioned tax against a person against whom the tax has been
  854  apportioned in view of the improbability of obtaining a judgment
  855  or the improbability of collection under any judgment that might
  856  be obtained, or otherwise.
  857         (b) A personal representative or fiduciary is not liable
  858  for failure to attempt to enforce collection if the personal
  859  representative or fiduciary reasonably believes that collection
  860  would have been economically impracticable.
  861         (9) UNCOLLECTED TAX.Any apportioned tax that is not
  862  collected shall be reapportioned in accordance with this section
  863  as if the portion of the property to which the uncollected tax
  864  had been apportioned had been exempt.
  865         (10) CONTRIBUTION.—This section does not limit the right of
  866  any person who has paid more than the amount of the tax
  867  apportionable to that person, calculated as if all apportioned
  868  amounts would be collected, to obtain contribution from those
  869  who have not paid the full amount of the tax apportionable to
  870  them, calculated as if all apportioned amounts would be
  871  collected, and that right is hereby conferred. In any action to
  872  enforce contribution, the court shall award taxable costs as in
  873  chancery actions, including reasonable attorney fees.
  874         (11) FOREIGN TAX.—This section does not require the
  875  personal representative or fiduciary to pay any tax levied or
  876  assessed by a foreign country unless specific directions to that
  877  effect are contained in the will or other instrument under which
  878  the personal representative or fiduciary is acting.
  879         Section 7. Section 736.1005, Florida Statutes, is amended
  880  to read:
  881         736.1005 Attorney attorney’s fees for services to the
  882  trust.—
  883         (1) Any attorney who has rendered services to a trust may
  884  be awarded reasonable compensation from the trust. The attorney
  885  may apply to the court for an order awarding attorney attorney’s
  886  fees and, after notice and service on the trustee and all
  887  beneficiaries entitled to an accounting under s. 736.0813, the
  888  court shall enter an order on the fee application.
  889         (2) If attorney Whenever attorney’s fees are to be paid
  890  from out of the trust under subsection (1), s. 736.1007(5)(a),
  891  or s. 733.106(4)(a), the court, in its discretion, may direct
  892  from what part of the trust the fees shall be paid.
  893         (a) All or any part of the attorney fees to be paid from
  894  the trust may be assessed against one or more persons’ part of
  895  the trust in such proportions as the court finds to be just and
  896  proper.
  897         (b) In the exercise of its discretion, the court may
  898  consider the following factors:
  899         1. The relative impact of an assessment on the estimated
  900  value of each person’s part of the trust.
  901         2. The amount of attorney fees to be assessed against a
  902  person’s part of the trust.
  903         3. The extent to which a person whose part of the trust is
  904  to be assessed, individually or through counsel, actively
  905  participated in the proceeding.
  906         4. The potential benefit or detriment to a person’s part of
  907  the trust expected from the outcome of the proceeding.
  908         5. The relative strength or weakness of the merits of the
  909  claims, defenses, or objections, if any, asserted by a person
  910  whose part of the trust is to be assessed.
  911         6. Whether a person whose part of the trust is to be
  912  assessed was a prevailing party with respect to one or more
  913  claims, defenses, or objections.
  914         7. Whether a person whose part of the trust is to be
  915  assessed unjustly caused an increase in the amount of attorney
  916  fees incurred by the trustee or another person in connection
  917  with the proceeding.
  918         8. Any other relevant fact, circumstance, or equity.
  919         (c) The court may assess a person’s part of the trust
  920  without finding that the person engaged in bad faith,
  921  wrongdoing, or frivolousness.
  922         (3) Except when a trustee’s interest may be adverse in a
  923  particular matter, the attorney shall give reasonable notice in
  924  writing to the trustee of the attorney’s retention by an
  925  interested person and the attorney’s entitlement to fees
  926  pursuant to this section. A court may reduce any fee award for
  927  services rendered by the attorney prior to the date of actual
  928  notice to the trustee, if the actual notice date is later than a
  929  date of reasonable notice. In exercising this discretion, the
  930  court may exclude compensation for services rendered after the
  931  reasonable notice date but before prior to the date of actual
  932  notice.
  933         Section 8. Section 736.1006, Florida Statutes, is amended
  934  to read:
  935         736.1006 Costs in trust proceedings.—
  936         (1) In all trust proceedings, costs may be awarded as in
  937  chancery actions.
  938         (2) If Whenever costs are to be paid from out of the trust
  939  under subsection (1) or s. 733.106(4)(a), the court, in its
  940  discretion, may direct from what part of the trust the costs
  941  shall be paid. All or any part of the costs to be paid from the
  942  trust may be assessed against one or more persons’ part of the
  943  trust in such proportions as the court finds to be just and
  944  proper. In the exercise of its discretion, the court may
  945  consider the factors set forth in s. 736.1005(2).
  946         Section 9. The amendments made by this act to ss. 733.212,
  947  733.2123, 733.3101, and 733.504, Florida Statutes, apply to
  948  proceedings commenced on or after July 1, 2015. The law in
  949  effect before July 1, 2015, applies to proceedings commenced
  950  before that date.
  951         Section 10. (1) The amendment made by this act to s.
  952  733.817(1)(g) and (2)(c), Florida Statutes, is remedial in
  953  nature, is intended to clarify existing law, and applies
  954  retroactively to all proceedings pending or commenced on or
  955  after July 1, 2015, in which the apportionment of taxes has not
  956  been finally determined or agreed for the estates of decedents
  957  who die after December 31, 2004.
  958         (2) The amendment made by this act to s. 733.817(1)(e)3.,
  959  (3)(e), (3)(g), (4)(b), (4)(c), (4)(d)1.b., (4)(e), (4)(h), and
  960  (6), Florida Statutes, applies to the estates of decedents who
  961  die on or after July 1, 2015.
  962         (3) Except as provided in subsections (1) and (2), the
  963  amendment made by this act to s. 733.817, Florida Statutes, is
  964  remedial in nature, is intended to clarify existing law, and
  965  applies retroactively to all proceedings pending or commenced on
  966  or after July 1, 2015, in which the apportionment of taxes has
  967  not been finally determined or agreed and without regard to the
  968  date of the decedent’s death.
  969         Section 11. The amendments made by this act to ss. 733.106,
  970  736.1005, and 736.1006, Florida Statutes, apply to proceedings
  971  commenced on or after July 1, 2015. The law in effect before
  972  July 1, 2015, applies to proceedings commenced before that date.
  973         Section 12. This act shall take effect July 1, 2015.