Bill Text: FL S0872 | 2015 | Regular Session | Enrolled
Bill Title: Estates
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Passed) 2015-05-15 - Chapter No. 2015-27 [S0872 Detail]
Download: Florida-2015-S0872-Enrolled.html
ENROLLED 2015 Legislature CS for CS for SB 872, 1st Engrossed 2015872er 1 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 attorneyattorney’sfees.— 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 attorneyattorney’sfees 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) IfWhencosts and attorneyattorney’sfees 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 personal198representative,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 personal237representative,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, knowsor should have known247 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 258attorney’sfees, 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 the275removal 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 iswouldnot nowbeentitled 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 Attorneyattorney’sfees 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 attorneyattorney’s886 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 attorneyWheneverattorney’sfees are to be paid 890 fromout ofthe 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 beforeprior tothe 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) IfWhenevercosts are to be paid fromout ofthe 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.