Florida Senate - 2015                       CS for CS for SB 872
       
       
        
       By the Committees on Banking and Insurance; and Judiciary; and
       Senator Hukill
       
       
       
       
       597-03198B-15                                          2015872c2
    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. 733.617, F.S.; prohibiting an attorney or
   44         person related to the attorney from receiving
   45         compensation for serving as a personal representative
   46         if the attorney prepared or supervised execution of
   47         the will unless the attorney or person is related to
   48         the testator or the testator acknowledges in writing
   49         the receipt of certain disclosures; specifying the
   50         disclosures that must be acknowledged; specifying when
   51         an attorney is deemed to have prepared or supervised
   52         the execution of a will; specifying when a person is
   53         “related” to another individual; specifying when an
   54         attorney or person related to the attorney is deemed
   55         to be nominated as personal representative; providing
   56         that the provisions do not limit an interested
   57         person’s rights or remedies at law or equity except
   58         for compensation payable to a personal representative;
   59         providing that the failure to obtain a written
   60         acknowledgment of the disclosure does not disqualify a
   61         personal representative from serving or affect the
   62         validity of a will; providing a form for the written
   63         acknowledgment; providing applicability; amending s.
   64         733.817, F.S.; defining and redefining terms; deleting
   65         a provision that exempts an interest in protected
   66         homestead from the apportionment of taxes; providing
   67         for the payment of taxes on protected homestead family
   68         allowance and exempt property by certain other
   69         property to the extent such other property is
   70         sufficient; revising the allocation of taxes; revising
   71         the apportionment of the net tax attributable to
   72         specified interests; authorizing a court to assess
   73         liability in an equitable manner under certain
   74         circumstances; providing that a governing instrument
   75         may not direct that taxes be paid from property other
   76         than property passing under the governing instrument,
   77         except under specified conditions; requiring that
   78         direction in a governing instrument be express to
   79         apportion taxes under certain circumstances; requiring
   80         that the right of recovery provided in the Internal
   81         Revenue Code for certain taxes be expressly waived in
   82         the decedent’s will or revocable trust with certain
   83         specificity; specifying the property upon which
   84         certain tax is imposed for allocation and
   85         apportionment of certain tax; providing that a general
   86         statement in the decedent’s will or revocable trust
   87         waiving all rights of reimbursement or recovery under
   88         the Internal Revenue Code is not an express waiver of
   89         certain rights of recovery; requiring direction to
   90         specifically reference the generation-skipping
   91         transfer tax imposed by the Internal Revenue Code to
   92         direct its apportionment; authorizing, under certain
   93         circumstances, the decedent to direct by will the
   94         amount of net tax attributable to property over which
   95         the decedent held a general power of appointment under
   96         certain circumstances; providing that an express
   97         direction in a revocable trust is deemed to be a
   98         direction contained in the decedent’s will as well as
   99         the revocable trust under certain circumstances;
  100         providing that an express direction in the decedent’s
  101         will to pay tax from the decedent’s revocable trust by
  102         specific reference to the revocable trust is effective
  103         unless a contrary express direction is contained in
  104         the revocable trust; revising the resolution of
  105         conflicting directions in governing instruments with
  106         regard to payment of taxes; providing that the later
  107         express direction in the will or other governing
  108         instrument controls; providing that the date of an
  109         amendment to a will or other governing instrument is
  110         the date of the will or trust for conflict resolution
  111         only if the codicil or amendment contains an express
  112         tax apportionment provision or an express modification
  113         of the tax apportionment provision; providing that a
  114         will is deemed executed after another governing
  115         instrument if the decedent’s will and another
  116         governing instrument were executed on the same date;
  117         providing that an earlier conflicting governing
  118         instrument controls as to any tax remaining unpaid
  119         after the application of the later conflicting
  120         governing instrument; providing that a grant of
  121         permission or authority in a governing instrument to
  122         request payment of tax from property passing under
  123         another governing instrument is not a direction
  124         apportioning the tax to the property passing under the
  125         other governing instrument; providing a grant of
  126         permission or authority in a governing instrument to
  127         pay tax attributable to property not passing under the
  128         governing instrument is not a direction apportioning
  129         the tax to property passing under the governing
  130         instrument; providing application; prohibiting the
  131         requiring of a personal representative or fiduciary to
  132         transfer to a recipient property that may be used for
  133         payment of taxes; amending s. 736.0708, F.S.;
  134         prohibiting an attorney or person related to the
  135         attorney from receiving compensation for serving as a
  136         trustee if the attorney prepared or supervised
  137         execution of the trust instrument unless the attorney
  138         or person is related to the settlor or the settlor
  139         acknowledges in writing the receipt of certain
  140         disclosures; specifying the disclosures that must be
  141         acknowledged; specifying when an attorney is deemed to
  142         have prepared or supervised the execution of a trust
  143         instrument; specifying when a person is “related” to
  144         another individual; specifying when an attorney or
  145         person related to the attorney is deemed to be
  146         appointed as trustee; providing that the provisions do
  147         not limit an interested person’s rights or remedies at
  148         law or equity except for compensation payable to a
  149         trustee; providing that the failure to obtain a
  150         written acknowledgment of the disclosure does not
  151         disqualify a trustee from serving or affect the
  152         validity of a trust instrument; providing a form for
  153         the written acknowledgment; providing applicability;
  154         amending s. 736.1005, F.S.; authorizing the court, if
  155         attorney fees are to be paid from the trust under
  156         specified sections of law, to direct payment from a
  157         certain part of the trust; providing that fees may be
  158         assessed against one or more persons’ part of the
  159         trust in such proportions as the court finds just and
  160         proper; specifying factors that the court may consider
  161         in directing the assessment of such fees; providing
  162         that a court may assess fees without finding that a
  163         person engaged specified wrongful acts; amending s.
  164         736.1006, F.S.; authorizing the court, if costs are to
  165         be paid from the trust under specified sections of
  166         law, to direct payment from a certain part of the
  167         trust; providing that costs may be assessed against
  168         one or more persons’ part of the trust in such
  169         proportions as the court finds just and proper;
  170         specifying factors that the court may consider in
  171         directing the assessment of such costs; providing that
  172         specified provisions of the act are remedial and
  173         intended to clarify existing law; providing for
  174         retroactive and prospective application of specified
  175         portions of the act; providing effective dates.
  176          
  177  Be It Enacted by the Legislature of the State of Florida:
  178  
  179         Section 1. Section 733.106, Florida Statutes, is amended to
  180  read:
  181         733.106 Costs and attorney attorney’s fees.—
  182         (1) In all probate proceedings, costs may be awarded as in
  183  chancery actions.
  184         (2) A person nominated as personal representative, or any
  185  proponent of a will if the person so nominated does not act
  186  within a reasonable time, if in good faith justified in offering
  187  the will in due form for probate, shall receive costs and
  188  attorney attorney’s fees from the estate even though probate is
  189  denied or revoked.
  190         (3) Any attorney who has rendered services to an estate may
  191  be awarded reasonable compensation from the estate.
  192         (4) If When costs and attorney attorney’s fees are to be
  193  paid from the estate under this section, s. 733.6171(4), s.
  194  736.1005, or s. 736.1006, the court, in its discretion, may
  195  direct from what part of the estate they shall be paid.
  196         (a) If the court directs an assessment against a person’s
  197  part of the estate and such part is insufficient to fully pay
  198  the assessment, the court may direct payment from the person’s
  199  part of a trust, if any, if a pourover will is involved and the
  200  matter is interrelated with the trust.
  201         (b) All or any part of the costs and attorney fees to be
  202  paid from the estate may be assessed against one or more
  203  persons’ part of the estate in such proportions as the court
  204  finds to be just and proper.
  205         (c) In the exercise of its discretion, the court may
  206  consider the following factors:
  207         1. The relative impact of an assessment on the estimated
  208  value of each person’s part of the estate.
  209         2. The amount of costs and attorney fees to be assessed
  210  against a person’s part of the estate.
  211         3. The extent to which a person whose part of the estate is
  212  to be assessed, individually or through counsel, actively
  213  participated in the proceeding.
  214         4. The potential benefit or detriment to a person’s part of
  215  the estate expected from the outcome of the proceeding.
  216         5. The relative strength or weakness of the merits of the
  217  claims, defenses, or objections, if any, asserted by a person
  218  whose part of the estate is to be assessed.
  219         6. Whether a person whose part of the estate is to be
  220  assessed was a prevailing party with respect to one or more
  221  claims, defenses, or objections.
  222         7. Whether a person whose part of the estate is to be
  223  assessed unjustly caused an increase in the amount of costs and
  224  attorney fees incurred by the personal representative or another
  225  interested person in connection with the proceeding.
  226         8. Any other relevant fact, circumstance, or equity.
  227         (d) The court may assess a person’s part of the estate
  228  without finding that the person engaged in bad faith,
  229  wrongdoing, or frivolousness.
  230         Section 2. Paragraph (c) of subsection (2) and subsection
  231  (3) of section 733.212, Florida Statutes, are amended to read:
  232         733.212 Notice of administration; filing of objections.—
  233         (2) The notice shall state:
  234         (c) That any interested person on whom a copy of the notice
  235  of administration is served must file on or before the date that
  236  is 3 months after the date of service of a copy of the notice of
  237  administration on that person any objection that challenges the
  238  validity of the will, the qualifications of the personal
  239  representative, the venue, or the jurisdiction of the court. The
  240  3-month time period may only be extended for estoppel based upon
  241  a misstatement by the personal representative regarding the time
  242  period within which an objection must be filed. The time period
  243  may not be extended for any other reason, including affirmative
  244  representation, failure to disclose information, or misconduct
  245  by the personal representative or any other person. Unless
  246  sooner barred by subsection (3), all objections to the validity
  247  of a will, venue, or the jurisdiction of the court must be filed
  248  no later than the earlier of the entry of an order of final
  249  discharge of the personal representative or 1 year after service
  250  of the notice of administration.
  251         (3) Any interested person on whom a copy of the notice of
  252  administration is served must object to the validity of the
  253  will, the qualifications of the personal representative, the
  254  venue, or the jurisdiction of the court by filing a petition or
  255  other pleading requesting relief in accordance with the Florida
  256  Probate Rules on or before the date that is 3 months after the
  257  date of service of a copy of the notice of administration on the
  258  objecting person, or those objections are forever barred. The 3
  259  month time period may only be extended for estoppel based upon a
  260  misstatement by the personal representative regarding the time
  261  period within which an objection must be filed. The time period
  262  may not be extended for any other reason, including affirmative
  263  representation, failure to disclose information, or misconduct
  264  by the personal representative or any other person. Unless
  265  sooner barred by this subsection, all objections to the validity
  266  of a will, venue, or the jurisdiction of the court must be filed
  267  no later than the earlier of the entry of an order of final
  268  discharge of the personal representative or 1 year after service
  269  of the notice of administration.
  270         Section 3. Section 733.2123, Florida Statutes, is amended
  271  to read:
  272         733.2123 Adjudication before issuance of letters.—A
  273  petitioner may serve formal notice of the petition for
  274  administration on interested persons. A person who is served
  275  with such notice before the issuance of letters or who has
  276  waived notice may not challenge the validity of the will,
  277  testacy of the decedent, qualifications of the personal
  278  representative, venue, or jurisdiction of the court, except in
  279  the proceedings before issuance of letters.
  280         Section 4. Section 733.3101, Florida Statutes, is amended
  281  to read:
  282         733.3101 Personal representative not qualified.—
  283         (1) A personal representative shall resign immediately if
  284  the personal representative knows that he or she was not
  285  qualified to act at the time of appointment.
  286         (2) Any time a personal representative, who was qualified
  287  to act at the time of appointment, knows or should have known
  288  that he or she would not be qualified for appointment if
  289  application for appointment were then made, the personal
  290  representative shall promptly file and serve a notice setting
  291  forth the reasons. The personal representative’s notice shall
  292  state that any interested person may petition to remove the
  293  personal representative. An interested person on whom a copy of
  294  the personal representative’s notice is served may file a
  295  petition requesting the personal representative’s removal within
  296  30 days after the date on which such notice is served.
  297         (3) A personal representative who fails to comply with this
  298  section shall be personally liable for costs, including attorney
  299  attorney’s fees, incurred in any removal proceeding, if the
  300  personal representative is removed. This liability extends to a
  301  personal representative who does not know, but should have
  302  known, of the facts that would have required him or her to
  303  resign under subsection (1) or to file and serve notice under
  304  subsection (2). This liability shall be cumulative to any other
  305  provided by law.
  306         (4) As used in this section, the term “qualified” means
  307  that the personal representative is qualified under ss. 733.302
  308  -733.305.
  309         Section 5. Section 733.504, Florida Statutes, is amended to
  310  read:
  311         733.504 Removal of personal representative; causes for
  312  removal.—A personal representative shall be removed and the
  313  letters revoked if he or she was not qualified to act at the
  314  time of appointment. A personal representative may be removed
  315  and the letters revoked for any of the following causes, and the
  316  removal shall be in addition to any penalties prescribed by law:
  317         (1) Adjudication that the personal representative is
  318  incapacitated.
  319         (2) Physical or mental incapacity rendering the personal
  320  representative incapable of the discharge of his or her duties.
  321         (3) Failure to comply with any order of the court, unless
  322  the order has been superseded on appeal.
  323         (4) Failure to account for the sale of property or to
  324  produce and exhibit the assets of the estate when so required.
  325         (5) Wasting or maladministration of the estate.
  326         (6) Failure to give bond or security for any purpose.
  327         (7) Conviction of a felony.
  328         (8) Insolvency of, or the appointment of a receiver or
  329  liquidator for, any corporate personal representative.
  330         (9) Holding or acquiring conflicting or adverse interests
  331  against the estate that will or may interfere with the
  332  administration of the estate as a whole. This cause of removal
  333  shall not apply to the surviving spouse because of the exercise
  334  of the right to the elective share, family allowance, or
  335  exemptions, as provided elsewhere in this code.
  336         (10) Revocation of the probate of the decedent’s will that
  337  authorized or designated the appointment of the personal
  338  representative.
  339         (11) Removal of domicile from Florida, if domicile was a
  340  requirement of initial appointment.
  341         (12) The personal representative was qualified to act at
  342  the time of appointment, but is would not now be entitled to
  343  appointment.
  344  
  345  Removal under this section is in addition to any penalties
  346  prescribed by law.
  347         Section 6. Effective October 1, 2015, subsection (6) of
  348  section 733.617, Florida Statutes, is amended, and subsection
  349  (8) is added to that section, to read:
  350         733.617 Compensation of personal representative.—
  351         (6) Except as provided in subsection (8), a If the personal
  352  representative who is a member of The Florida Bar and who has
  353  rendered legal services in connection with the administration of
  354  the estate, then in addition to a fee as personal
  355  representative, there also shall be allowed a fee for the legal
  356  services rendered in addition to a fee as personal
  357  representative.
  358         (8)(a) An attorney, or a person related to the attorney, is
  359  not entitled to compensation for serving as personal
  360  representative if the attorney prepared or supervised the
  361  execution of the will that nominates the attorney or person
  362  related to the attorney as personal representative, unless the
  363  attorney or person nominated is related to the testator or the
  364  attorney makes the following disclosures to the testator in
  365  writing before the will is executed:
  366         1. Subject to certain statutory limitations, most family
  367  members regardless of their residence, other persons who are
  368  residents of Florida, including friends, and corporate
  369  fiduciaries are eligible to serve as a personal representative.
  370         2. Any person, including an attorney, who serves as a
  371  personal representative is entitled to receive reasonable
  372  compensation for serving as personal representative.
  373         3. Compensation payable to the personal representative is
  374  in addition to any attorney fees payable to the attorney or the
  375  attorney’s firm for legal services rendered to the personal
  376  representative.
  377         (b) The testator must execute a written statement
  378  acknowledging that the disclosures required by this subsection
  379  were made prior to the execution of the will. The written
  380  acknowledgment must be in a separate writing from the will, but
  381  may be annexed to the will. The written acknowledgment may be
  382  executed before or after the execution of the will in which the
  383  attorney or related person is nominated as the personal
  384  representative.
  385         (c) For purposes of this subsection:
  386         1.An attorney is deemed to have prepared or supervised the
  387  execution of a will if the preparation or the supervision of the
  388  execution of the will was performed by an employee or attorney
  389  employed by the same firm as the attorney at the time the will
  390  was executed.
  391         2.a. A person is “related” to an individual if, at the time
  392  the attorney prepared or supervised the execution of the will,
  393  the person is:
  394         (I) A spouse of the individual;
  395         (II)A lineal ascendant or descendant of the individual;
  396         (III) A sibling of the individual;
  397         (IV) A relative of the individual or of the individual’s
  398  spouse with whom the attorney maintains a close, familial
  399  relationship;
  400         (V) A spouse of a person described in sub-sub-subparagraphs
  401  (I)-(IV); or
  402         (VI) A person who cohabits with the individual.
  403         b. An employee or attorney employed by the same firm as the
  404  attorney at the time the will is executed is deemed to be
  405  related to the attorney.
  406         3.An attorney or person related to the attorney is deemed
  407  to be nominated in the will if the will provided the attorney or
  408  a person related to the attorney with the power to nominate the
  409  personal representative and the attorney or person related to
  410  the attorney was nominated using that power.
  411         (d) This subsection applies to provisions nominating an
  412  attorney or a person related to the attorney as personal
  413  representative, copersonal representative, or successor or
  414  alternate personal representative if the person nominated is
  415  unable or unwilling to serve.
  416         (e) Other than compensation payable to the personal
  417  representative, this subsection does not limit any rights or
  418  remedies that an interested person may have at law or equity.
  419         (f) The failure to obtain a written acknowledgment from the
  420  testator under this subsection does not disqualify a personal
  421  representative from serving and does not affect the validity of
  422  a will.
  423         (g) A written acknowledgment signed by the testator that is
  424  in substantially the following form is deemed to comply with the
  425  disclosure requirements of this subsection:
  426  
  427         I, ... (Name)..., declare that:
  428         I have designated ...(my attorney, an attorney employed in
  429  the same law firm as my attorney, or a person related to my
  430  attorney)... as a nominated personal representative in my will
  431  (or codicil) dated ...(Date)..._.
  432         Before executing the will (or codicil), I was informed
  433  that:
  434         (1) Subject to certain statutory limitations, most family
  435  members regardless of their residence, other persons who are
  436  residents of Florida, including friends, and corporate
  437  fiduciaries are eligible to serve as a personal representative.
  438         (2) Any person, including an attorney, who serves as a
  439  personal representative is entitled to receive reasonable
  440  compensation for serving as personal representative.
  441         (3) Compensation payable to the personal representative is
  442  in addition to any attorney fees payable to the attorney or the
  443  attorney’s firm for legal services rendered to the personal
  444  representative.
  445  
  446  ...(Testator)...
  447  
  448  ...(Dated)...
  449  
  450         (h) This subsection applies to each nomination made
  451  pursuant to a will that is:
  452         1. Executed by a resident of this state on or after October
  453  1, 2015.
  454         2. Republished by a resident of this state on or after
  455  October 1, 2015, if the republished will nominates the attorney
  456  who prepared or supervised the execution of the instrument that
  457  republished the will, or a person related to such attorney, as
  458  personal representative.
  459         Section 7. Section 733.817, Florida Statutes, is amended to
  460  read:
  461         (Substantial rewording of section. See
  462         s. 733.817, F.S., for present text.)
  463         733.817 Apportionment of estate taxes.—
  464         (1) DEFINITIONS.—As used in this section, the term:
  465         (a) “Fiduciary” means a person, other than the personal
  466  representative in possession of property included in the measure
  467  of the tax, who is liable to the applicable taxing authority for
  468  payment of the entire tax to the extent of the value of the
  469  property in possession.
  470         (b) “Generation-skipping transfer tax” means the
  471  generation-skipping transfer tax imposed by chapter 13 of the
  472  Internal Revenue Code on direct skips of interests includible in
  473  the federal gross estate or a corresponding tax imposed by any
  474  state or country or political subdivision of the foregoing. The
  475  term does not include the generation-skipping transfer tax on
  476  taxable distributions, taxable terminations, or any other
  477  generation-skipping transfer. The terms direct skip, taxable
  478  distribution,” and “taxable termination” have the same meanings
  479  as provided in s. 2612 of the Internal Revenue Code.
  480         (c) “Governing instrument” means a will, trust instrument,
  481  or any other document that controls the transfer of property on
  482  the occurrence of the event with respect to which the tax is
  483  being levied.
  484         (d) “Gross estate” means the gross estate, as determined by
  485  the Internal Revenue Code with respect to the federal estate tax
  486  and the Florida estate tax, and as that concept is otherwise
  487  determined by the estate, inheritance, or death tax laws of the
  488  particular state, country, or political subdivision whose tax is
  489  being apportioned.
  490         (e) “Included in the measure of the tax” means for each
  491  separate tax that an interest may incur, only interests included
  492  in the measure of that particular tax are considered. As used in
  493  this section, the term does not include:
  494         1. Any interest, whether passing under the will or not, to
  495  the extent the interest is initially deductible from the gross
  496  estate, without regard to any subsequent reduction of the
  497  deduction by reason of the charge of any part of the applicable
  498  tax to the interest. If an election is required for
  499  deductibility, an interest is not initially deductible unless
  500  the election for deductibility is allowed.
  501         2. Interests or amounts that are not included in the gross
  502  estate but are included in the amount upon which the applicable
  503  tax is computed, such as adjusted taxable gifts pursuant to s.
  504  2001 of the Internal Revenue Code.
  505         3. Gift taxes included in the gross estate pursuant to s.
  506  2035 of the Internal Revenue Code and the portion of any inter
  507  vivos transfer included in the gross estate pursuant to s. 529
  508  of the Internal Revenue Code, notwithstanding inclusion in the
  509  gross estate.
  510         (f) “Internal Revenue Code” means the Internal Revenue Code
  511  of 1986, as amended.
  512         (g) “Net tax” means the net tax payable to the particular
  513  state, country, or political subdivision whose tax is being
  514  apportioned, after taking into account all credits against the
  515  applicable tax except as provided in this section. With respect
  516  to the federal estate tax, net tax is determined after taking
  517  into account all credits against the tax except for the credit
  518  for foreign death taxes and except for the credit or deduction
  519  for state taxes imposed by states other than this state.
  520         (h) “Nonresiduary devise” means any devise that is not a
  521  residuary devise.
  522         (i) “Nonresiduary interest,” in connection with a trust,
  523  means any interest in a trust which is not a residuary interest.
  524         (j) “Recipient” means, with respect to property or an
  525  interest in property included in the gross estate, an heir at
  526  law in an intestate estate, devisee in a testate estate,
  527  beneficiary of a trust, beneficiary of a life insurance policy,
  528  annuity, or other contractual right, surviving tenant, taker as
  529  a result of the exercise or in default of the exercise of a
  530  general power of appointment, person who receives or is to
  531  receive the property or an interest in the property, or person
  532  in possession of the property, other than a creditor.
  533         (k)“Residuary devise” has the meaning in s. 731.201.
  534         (l) “Residuary interest,” in connection with a trust, means
  535  an interest in the assets of a trust which remain after
  536  provision for any distribution that is to be satisfied by
  537  reference to a specific property or type of property, fund, sum,
  538  or statutory amount.
  539         (m) “Revocable trust” means a trust as described in s.
  540  733.707(3).
  541         (n) “Section 2044 interest” means an interest included in
  542  the measure of the tax by reason of s. 2044 of the Internal
  543  Revenue Code.
  544         (o) “State” means any state, territory, or possession of
  545  the United States, the District of Columbia, or the Commonwealth
  546  of Puerto Rico.
  547         (p) “Tax” means any estate tax, inheritance tax,
  548  generation-skipping transfer tax, or other tax levied or
  549  assessed under the laws of this or any other state, the United
  550  States, any other country, or any political subdivision of the
  551  foregoing, as finally determined, which is imposed as a result
  552  of the death of the decedent. The term also includes any
  553  interest or penalties imposed in addition to the tax. Unless the
  554  context indicates otherwise, the term means each separate tax.
  555  The term does not include any additional estate tax imposed by
  556  s. 2032A(c) or s. 2057(f) of the Internal Revenue Code or a
  557  corresponding tax imposed by any state or country or political
  558  subdivision of the foregoing. The additional estate tax imposed
  559  shall be apportioned as provided in s. 2032A or s. 2057 of the
  560  Internal Revenue Code.
  561         (q) “Temporary interest” means an interest in income or an
  562  estate for a specific period of time, for life, or for some
  563  other period controlled by reference to extrinsic events,
  564  whether or not in trust.
  565         (r) “Tentative Florida tax” with respect to any property
  566  means the net Florida estate tax that would have been
  567  attributable to that property if no tax were payable to any
  568  other state in respect of that property.
  569         (s) “Value” means the pecuniary worth of the interest
  570  involved as finally determined for purposes of the applicable
  571  tax after deducting any debt, expense, or other deduction
  572  chargeable to it for which a deduction was allowed in
  573  determining the amount of the applicable tax. A lien or other
  574  encumbrance is not regarded as chargeable to a particular
  575  interest to the extent that it will be paid from other
  576  interests. The value of an interest is not reduced by reason of
  577  the charge against it of any part of the tax, except as provided
  578  in paragraph (3)(a).
  579         (2) ALLOCATION OF TAX.—Except as effectively directed in
  580  the governing instrument pursuant to subsection (4), the net tax
  581  attributable to the interests included in the measure of each
  582  tax shall be determined by the proportion that the value of each
  583  interest included in the measure of the tax bears to the total
  584  value of all interests included in the measure of the tax.
  585  Notwithstanding the foregoing provision of this subsection and
  586  except as effectively directed in the governing instrument:
  587         (a) The net tax attributable to section 2044 interests
  588  shall be determined in the manner provided for the federal
  589  estate tax in s. 2207A of the Internal Revenue Code, and the
  590  amount so determined shall be deducted from the tax to determine
  591  the net tax attributable to all other interests included in the
  592  measure of the tax.
  593         (b) The foreign tax credit allowed with respect to the
  594  federal estate tax shall be allocated among the recipients of
  595  interests finally charged with the payment of the foreign tax in
  596  reduction of any federal estate tax chargeable to the recipients
  597  of the foreign interests, whether or not any federal estate tax
  598  is attributable to the foreign interests. Any excess of the
  599  foreign tax credit shall be applied to reduce proportionately
  600  the net amount of federal estate tax chargeable to the remaining
  601  recipients of the interests included in the measure of the
  602  federal estate tax.
  603         (c) The reduction in the net tax attributable to the
  604  deduction for state death taxes allowed by s. 2058 of the
  605  Internal Revenue Code shall be allocated to the recipients of
  606  the interests that produced the deduction. For this purpose, the
  607  reduction in the net tax shall be calculated in the manner
  608  provided for interests other than those described in paragraph
  609  (a).
  610         (d) The reduction in the Florida tax, if one is imposed, on
  611  the estate of a Florida resident for tax paid to another state
  612  shall be allocated as follows:
  613         1. If the net tax paid to another state is greater than or
  614  equal to the tentative Florida tax attributable to the property
  615  subject to tax in the other state, none of the Florida tax shall
  616  be attributable to that property.
  617         2. If the net tax paid to another state is less than the
  618  tentative Florida tax attributable to the property subject to
  619  tax in the other state, the net Florida tax attributable to the
  620  property subject to tax in the other state shall be the excess
  621  of the amount of the tentative Florida tax attributable to the
  622  property over the net tax payable to the other state with
  623  respect to the property.
  624         3. Any remaining net Florida tax shall be attributable to
  625  property included in the measure of the Florida tax exclusive of
  626  the property subject to tax in another state.
  627         4. The net federal tax attributable to the property subject
  628  to tax in the other state shall be determined as if the property
  629  were located in that state.
  630         (e) The net tax attributable to a temporary interest, if
  631  any, is regarded as attributable to the principal that supports
  632  the temporary interest.
  633         (3)APPORTIONMENT OF TAX.—Except as otherwise effectively
  634  directed in the governing instrument pursuant to subsection (4),
  635  the net tax attributable to each interest shall be apportioned
  636  as follows:
  637         (a)Generation-skipping transfer tax.—Any federal or state
  638  generation-skipping transfer tax shall be apportioned as
  639  provided in s. 2603 of the Internal Revenue Code after the
  640  application of the remaining provisions of this subsection to
  641  taxes other than the generation-skipping transfer tax.
  642         (b)Section 2044 interests.—The net tax attributable to
  643  section 2044 interests shall be apportioned among the recipients
  644  of the section 2044 interests in the proportion that the value
  645  of each section 2044 interest bears to the total of all section
  646  2044 interests. The net tax apportioned by this paragraph to
  647  section 2044 interests that pass in the manner described in
  648  paragraph (c) or paragraph (d) shall be apportioned to the
  649  section 2044 interests in the manner described in those
  650  paragraphs before the apportionment of the net tax attributable
  651  to the other interests passing as provided in those paragraphs.
  652  The net tax attributable to the interests other than the section
  653  2044 interests which pass in the manner described in paragraph
  654  (c) or paragraph (d) shall be apportioned only to such other
  655  interests pursuant to those paragraphs.
  656         (c)Wills.—The net tax attributable to property passing
  657  under the decedent’s will shall be apportioned in the following
  658  order of priority:
  659         1. The net tax attributable to nonresiduary devises shall
  660  be charged to and paid from the residuary estate, whether or not
  661  all interests in the residuary estate are included in the
  662  measure of the tax. If the residuary estate is insufficient to
  663  pay the net tax attributable to all nonresiduary devises, the
  664  balance of the net tax attributable to nonresiduary devises
  665  shall be apportioned among the recipients of the nonresiduary
  666  devises in the proportion that the value of each nonresiduary
  667  devise included in the measure of the tax bears to the total of
  668  all nonresiduary devises included in the measure of the tax.
  669         2. The net tax attributable to residuary devises shall be
  670  apportioned among the recipients of the residuary devises
  671  included in the measure of the tax in the proportion that the
  672  value of each residuary devise included in the measure of the
  673  tax bears to the total of all residuary devises included in the
  674  measure of the tax. If the residuary estate is insufficient to
  675  pay the net tax attributable to all residuary devises, the
  676  balance of the net tax attributable to residuary devises shall
  677  be apportioned among the recipients of the nonresiduary devises
  678  in the proportion that the value of each nonresiduary devise
  679  included in the measure of the tax bears to the total of all
  680  nonresiduary devises included in the measure of the tax.
  681         (d) Trusts.—The net tax attributable to property passing
  682  under the terms of any trust other than a trust created in the
  683  decedent’s will shall be apportioned in the following order of
  684  priority:
  685         1. The net tax attributable to nonresiduary interests of
  686  the trust shall be charged to and paid from the residuary
  687  portion of the trust, whether or not all interests in the
  688  residuary portion are included in the measure of the tax. If the
  689  residuary portion is insufficient to pay the net tax
  690  attributable to all nonresiduary interests, the balance of the
  691  net tax attributable to nonresiduary interests shall be
  692  apportioned among the recipients of the nonresiduary interests
  693  in the proportion that the value of each nonresiduary interest
  694  included in the measure of the tax bears to the total of all
  695  nonresiduary interests included in the measure of the tax.
  696         2. The net tax attributable to residuary interests of the
  697  trust shall be apportioned among the recipients of the residuary
  698  interests of the trust included in the measure of the tax in the
  699  proportion that the value of each residuary interest included in
  700  the measure of the tax bears to the total of all residuary
  701  interests of the trust included in the measure of the tax. If
  702  the residuary portion is insufficient to pay the net tax
  703  attributable to all residuary interests, the balance of the net
  704  tax attributable to residuary interests shall be apportioned
  705  among the recipients of the nonresiduary interests in the
  706  proportion that the value of each nonresiduary interest included
  707  in the measure of the tax bears to the total of all nonresiduary
  708  interests included in the measure of the tax.
  709  
  710  Except as provided in paragraph (g), this paragraph applies
  711  separately for each trust.
  712         (e) Protected homestead, exempt property, and family
  713  allowance.
  714         1. The net tax attributable to an interest in protected
  715  homestead, exempt property, and the family allowance determined
  716  under s. 732.403 shall be apportioned against the recipients of
  717  other interests in the estate or passing under any revocable
  718  trust in the following order of priority:
  719         a. Class I.—Recipients of interests passing by intestacy
  720  that are included in the measure of the federal estate tax.
  721         b. Class II.—Recipients of residuary devises, residuary
  722  interests, and pretermitted shares under ss. 732.301 and 732.302
  723  that are included in the measure of the federal estate tax.
  724         c. Class III.—Recipients of nonresiduary devises and
  725  nonresiduary interests that are included in the measure of the
  726  federal estate tax.
  727         2. Any net tax apportioned to a class pursuant to this
  728  paragraph shall be apportioned among each recipient in the class
  729  in the proportion that the value of the interest of each bears
  730  to the total value of all interests included in that class. A
  731  tax may not be apportioned under this paragraph to the portion
  732  of any interest applied in satisfaction of the elective share
  733  whether or not included in the measure of the tax. For purposes
  734  of this paragraph, if the value of the interests described in s.
  735  732.2075(1) exceeds the amount of the elective share, the
  736  elective share shall be treated as satisfied first from
  737  interests other than those described in classes I, II, and III,
  738  and to the extent that those interests are insufficient to
  739  satisfy the elective share, from the interests passing to or for
  740  the benefit of the surviving spouse described in classes I, II,
  741  and III, beginning with those described in class I, until the
  742  elective share is satisfied. This paragraph has priority over
  743  paragraphs (a) and (h).
  744         3. The balance of the net tax attributable to any interest
  745  in protected homestead, exempt property, and the family
  746  allowance determined under s. 732.403 which is not apportioned
  747  under the preceding provisions of this paragraph shall be
  748  apportioned to the recipients of those interests included in the
  749  measure of the tax in the proportion that the value of each
  750  bears to the total value of those interests included in the
  751  measure of the tax.
  752         (f) Construction.—For purposes of this subsection:
  753         1. If the decedent’s estate is the beneficiary of a life
  754  insurance policy, annuity, or contractual right included in the
  755  decedent’s gross estate, or is the taker as a result of the
  756  exercise or default in exercise of a general power of
  757  appointment held by the decedent, that interest shall be
  758  regarded as passing under the terms of the decedent’s will for
  759  the purposes of paragraph (c) or by intestacy if not disposed of
  760  by will. Additionally, any interest included in the measure of
  761  the tax by reason of s. 2041 of the Internal Revenue Code
  762  passing to the decedent’s creditors or the creditors of the
  763  decedent’s estate shall be regarded as passing to the decedent’s
  764  estate for the purpose of this subparagraph.
  765         2. If a trust is the beneficiary of a life insurance
  766  policy, annuity, or contractual right included in the decedent’s
  767  gross estate, or is the taker as a result of the exercise or
  768  default in exercise of a general power of appointment held by
  769  the decedent, that interest shall be regarded as passing under
  770  the trust for purposes of paragraph (d).
  771         (g) Common instrument construction.In the application of
  772  this subsection, paragraphs (b)-(f) shall be applied to
  773  apportion the net tax to the recipients under certain governing
  774  instruments as if all recipients under those instruments, other
  775  than the estate or revocable trust itself, were taking under a
  776  common instrument. This construction applies to the following:
  777         1. The decedent’s will and revocable trust if the estate is
  778  a beneficiary of the revocable trust or if the revocable trust
  779  is a beneficiary of the estate.
  780         2. A revocable trust of the decedent and another revocable
  781  trust of the decedent if either trust is the beneficiary of the
  782  other trust.
  783         (h) Other interests.—The net tax that is not apportioned to
  784  interests under paragraphs (b)-(g), including, but not limited
  785  to, the net tax attributable to interests passing by intestacy,
  786  interests applied in satisfaction of the elective share pursuant
  787  to s. 732.2075(2), interests passing by reason of the exercise
  788  or nonexercise of a general power of appointment, jointly held
  789  interests passing by survivorship, life insurance, properties in
  790  which the decedent held a reversionary or revocable interest,
  791  annuities, and contractual rights, shall be apportioned among
  792  the recipients of the remaining interests included in the
  793  measure of the tax in the proportion that the value of each such
  794  interest bears to the total value of all remaining interests
  795  included in the measure of the tax.
  796         (i) Assessment of liability by court.—If the court finds
  797  that:
  798         1. It is inequitable to apportion interest or penalties, or
  799  both, in the manner provided in paragraphs (a)-(h), the court
  800  may assess liability for the payment thereof in the manner that
  801  the court finds equitable.
  802         2. The payment of any tax was not effectively directed in
  803  the governing instrument pursuant to subsection (4) and that
  804  such tax is not apportioned by this subsection, the court may
  805  assess liability for the payment of such tax in the manner that
  806  the court finds equitable.
  807         (4) DIRECTION AGAINST APPORTIONMENT.—
  808         (a) Except as provided in this subsection, a governing
  809  instrument may not direct that taxes be paid from property other
  810  than that passing under the governing instrument.
  811         (b) For a direction in a governing instrument to be
  812  effective to direct payment of taxes attributable to property
  813  passing under the governing instrument in a manner different
  814  from that provided in this section, the direction must be
  815  express.
  816         (c) For a direction in a governing instrument to be
  817  effective to direct payment of taxes attributable to property
  818  not passing under the governing instrument from property passing
  819  under the governing instrument, the governing instrument must
  820  expressly direct that the property passing under the governing
  821  instrument bear the burden of taxation for property not passing
  822  under the governing instrument. Except as provided in paragraph
  823  (d), a direction in the governing instrument to the effect that
  824  all taxes are to be paid from property passing under the
  825  governing instrument whether attributable to property passing
  826  under the governing instrument or otherwise shall be effective
  827  to direct payment from property passing under the governing
  828  instrument of taxes attributable to property not passing under
  829  the governing instrument.
  830         (d) In addition to satisfying the other provisions of this
  831  subsection:
  832         1.a. For a direction in the decedent’s will or revocable
  833  trust to be effective in waiving the right of recovery provided
  834  in s. 2207A of the Internal Revenue Code for the tax
  835  attributable to section 2044 interests, and for any tax imposed
  836  by Florida based upon such section 2044 interests, the direction
  837  must expressly waive that right of recovery. An express
  838  direction that property passing under the will or revocable
  839  trust bear the tax imposed by s. 2044 of the Internal Revenue
  840  Code is deemed an express waiver of the right of recovery
  841  provided in s. 2207A of the Internal Revenue Code. A reference
  842  to “qualified terminable interest property,” “QTIP,” or property
  843  in which the decedent had a “qualifying income interest for
  844  life” is deemed to be a reference to property upon which tax is
  845  imposed by s. 2044 of the Internal Revenue Code which is subject
  846  to the right of recovery provided in s. 2207A of the Internal
  847  Revenue Code.
  848         b. If property is included in the gross estate pursuant to
  849  ss. 2041 and 2044 of the Internal Revenue Code, the property is
  850  deemed included under s. 2044, and not s. 2041, for purposes of
  851  allocation and apportionment of the tax.
  852         2. For a direction in the decedent’s will or revocable
  853  trust to be effective in waiving the right of recovery provided
  854  in s. 2207B of the Internal Revenue Code for tax imposed by
  855  reason of s. 2036 of the Internal Revenue Code, and any tax
  856  imposed by Florida based upon s. 2036 of the Internal Revenue
  857  Code, the direction must expressly waive that right of recovery.
  858  An express direction that property passing under the will or
  859  revocable trust bear the tax imposed by s. 2036 of the Internal
  860  Revenue Code is deemed an express waiver of the right of
  861  recovery provided in s. 2207B of the Internal Revenue Code. If
  862  property is included in the gross estate pursuant to ss. 2036
  863  and 2038 of the Internal Revenue Code, the property is deemed
  864  included under s. 2038, not s. 2036, for purposes of allocation
  865  and apportionment of the tax, and there is no right of recovery
  866  under s. 2207B of the Internal Revenue Code.
  867         3. A general statement in the decedent’s will or revocable
  868  trust waiving all rights of reimbursement or recovery under the
  869  Internal Revenue Code is not an express waiver of the rights of
  870  recovery provided in s. 2207A or s. 2207B of the Internal
  871  Revenue Code.
  872         4. For a direction in a governing instrument to be
  873  effective to direct payment of generation-skipping transfer tax
  874  in a manner other than as provided in s. 2603 of the Internal
  875  Revenue Code, and any tax imposed by Florida based on s. 2601 of
  876  the Internal Revenue Code, the direction must specifically
  877  reference the tax imposed by s. 2601 of the Internal Revenue
  878  Code. A reference to the generation-skipping transfer tax or s.
  879  2603 of the Internal Revenue Code is deemed to be a reference to
  880  property upon which tax is imposed by reason of s. 2601 of the
  881  Internal Revenue Code.
  882         (e) If the decedent expressly directs by will, the net tax
  883  attributable to property over which the decedent held a general
  884  power of appointment may be determined in a manner other than as
  885  provided in subsection (2) if the net tax attributable to that
  886  property does not exceed the difference between the total net
  887  tax determined pursuant to subsection (2), determined without
  888  regard to this paragraph, and the total net tax that would have
  889  been payable if the value of the property subject to such power
  890  of appointment had not been included in the decedent’s gross
  891  estate. If tax is attributable to one or more section 2044
  892  interests pursuant to subsection (2), the net tax attributable
  893  to the section 2044 interests shall be calculated before the
  894  application of this paragraph unless the decedent expressly
  895  directs otherwise by will.
  896         (f) If the decedent’s will expressly provides that the tax
  897  is to be apportioned as provided in the decedent’s revocable
  898  trust by specific reference to the revocable trust, an express
  899  direction in the revocable trust is deemed to be a direction
  900  contained in the will as well as the revocable trust.
  901         (g) An express direction in the decedent’s will to pay tax
  902  from the decedent’s revocable trust by specific reference to the
  903  revocable trust is effective unless a contrary express direction
  904  is contained in the revocable trust.
  905         (h) If governing instruments contain effective directions
  906  that conflict as to payment of taxes, the most recently executed
  907  tax apportionment provision controls to the extent of the
  908  conflict. For the purpose of this subsection, if a will or other
  909  governing instrument is amended, the date of the codicil to the
  910  will or amendment to the governing instrument is regarded as the
  911  date of the will or other governing instrument only if the
  912  codicil or amendment contains an express tax apportionment
  913  provision or an express modification of the tax apportionment
  914  provision. A general statement ratifying or republishing all
  915  provisions not otherwise amended does not meet this condition.
  916  If the decedent’s will and another governing instrument were
  917  executed on the same date, the will is deemed executed after the
  918  other governing instrument. The earlier conflicting governing
  919  instrument controls as to any tax remaining unpaid after the
  920  application of the later conflicting governing instrument.
  921         (i) A grant of permission or authority in a governing
  922  instrument to request payment of tax from property passing under
  923  another governing instrument is not a direction apportioning the
  924  tax to the property passing under the other governing
  925  instrument. A grant of permission or authority in a governing
  926  instrument to pay tax attributable to property not passing under
  927  the governing instrument is not a direction apportioning the tax
  928  to property passing under the governing instrument.
  929         (j) This section applies to any tax remaining to be paid
  930  after the application of any effective express directions. An
  931  effective express direction for payment of tax on specific
  932  property or a type of property in a manner different from that
  933  provided in this section is not effective as an express
  934  direction for payment of tax on other property or other types of
  935  property included in the measure of the tax.
  936         (5) TRANSFER OF PROPERTY.—A personal representative or
  937  fiduciary shall not be required to transfer to a recipient any
  938  property reasonably anticipated to be necessary for the payment
  939  of taxes. Further, the personal representative or fiduciary is
  940  not required to transfer any property to the recipient until the
  941  amount of the tax due from the recipient is paid by the
  942  recipient. If property is transferred before final apportionment
  943  of the tax, the recipient shall provide a bond or other security
  944  for his or her apportioned liability in the amount and form
  945  prescribed by the personal representative or fiduciary.
  946         (6) ORDER OF APPORTIONMENT.—
  947         (a) The personal representative may petition at any time
  948  for an order of apportionment. If administration of the
  949  decedent’s estate has not commenced at any time after 90 days
  950  from the decedent’s death, any fiduciary may petition for an
  951  order of apportionment in the court in which venue would be
  952  proper for administration of the decedent’s estate. Notice of
  953  the petition for order of apportionment must be served on all
  954  interested persons in the manner provided for service of formal
  955  notice. At any time after 6 months from the decedent’s death,
  956  any recipient may petition the court for an order of
  957  apportionment.
  958         (b) The court shall determine all issues concerning
  959  apportionment. If the tax to be apportioned has not been finally
  960  determined, the court shall determine the probable tax due or to
  961  become due from all interested persons, apportion the probable
  962  tax, and retain jurisdiction over the parties and issues to
  963  modify the order of apportionment as appropriate until after the
  964  tax is finally determined.
  965         (7) DEFICIENCY.—
  966         (a) If the personal representative or fiduciary does not
  967  have possession of sufficient property otherwise distributable
  968  to the recipient to pay the tax apportioned to the recipient,
  969  whether under this section, the Internal Revenue Code, or the
  970  governing instrument, if applicable, the personal representative
  971  or fiduciary shall recover the deficiency in tax so apportioned
  972  to the recipient:
  973         1. From the fiduciary in possession of the property to
  974  which the tax is apportioned, if any; and
  975         2. To the extent of any deficiency in collection from the
  976  fiduciary, or to the extent collection from the fiduciary is
  977  excused pursuant to subsection (8) and in all other cases, from
  978  the recipient of the property to which the tax is apportioned,
  979  unless relieved of this duty as provided in subsection (8).
  980         (b) In any action to recover the tax apportioned, the order
  981  of apportionment is prima facie correct.
  982         (c) In any action for the enforcement of an order of
  983  apportionment, the court shall award taxable costs as in
  984  chancery actions, including reasonable attorney fees, and may
  985  award penalties and interest on the unpaid tax in accordance
  986  with equitable principles.
  987         (d) This subsection does not authorize the recovery of any
  988  tax from a company issuing life insurance included in the gross
  989  estate, or from a bank, trust company, savings and loan
  990  association, or similar institution with respect to any account
  991  in the name of the decedent and any other person which passed by
  992  operation of law at the decedent’s death.
  993         (8) RELIEF FROM DUTY.—
  994         (a) A personal representative or fiduciary who has the duty
  995  under this section of collecting the apportioned tax from
  996  recipients may be relieved of the duty to collect the tax by an
  997  order of the court finding that:
  998         1. The estimated court costs and attorney fees in
  999  collecting the apportioned tax from a person against whom the
 1000  tax has been apportioned will approximate or exceed the amount
 1001  of the recovery;
 1002         2. The person against whom the tax has been apportioned is
 1003  a resident of a foreign country other than Canada and refuses to
 1004  pay the apportioned tax on demand; or
 1005         3. It is impracticable to enforce contribution of the
 1006  apportioned tax against a person against whom the tax has been
 1007  apportioned in view of the improbability of obtaining a judgment
 1008  or the improbability of collection under any judgment that might
 1009  be obtained, or otherwise.
 1010         (b) A personal representative or fiduciary is not liable
 1011  for failure to attempt to enforce collection if the personal
 1012  representative or fiduciary reasonably believes that collection
 1013  would have been economically impracticable.
 1014         (9) UNCOLLECTED TAX.Any apportioned tax that is not
 1015  collected shall be reapportioned in accordance with this section
 1016  as if the portion of the property to which the uncollected tax
 1017  had been apportioned had been exempt.
 1018         (10) CONTRIBUTION.—This section does not limit the right of
 1019  any person who has paid more than the amount of the tax
 1020  apportionable to that person, calculated as if all apportioned
 1021  amounts would be collected, to obtain contribution from those
 1022  who have not paid the full amount of the tax apportionable to
 1023  them, calculated as if all apportioned amounts would be
 1024  collected, and that right is hereby conferred. In any action to
 1025  enforce contribution, the court shall award taxable costs as in
 1026  chancery actions, including reasonable attorney fees.
 1027         (11) FOREIGN TAX.—This section does not require the
 1028  personal representative or fiduciary to pay any tax levied or
 1029  assessed by a foreign country unless specific directions to that
 1030  effect are contained in the will or other instrument under which
 1031  the personal representative or fiduciary is acting.
 1032         Section 8. Effective October 1, 2015, subsection (4) is
 1033  added to section 736.0708, Florida Statutes, to read:
 1034         736.0708 Compensation of trustee.—
 1035         (4)(a)An attorney, or a person related to the attorney, is
 1036  not entitled to compensation for serving as trustee if the
 1037  attorney prepared or supervised the execution of the trust
 1038  instrument that appoints the attorney or person related to the
 1039  attorney as trustee, unless the attorney or person appointed is
 1040  related to the settlor or the attorney makes the following
 1041  disclosures to the settlor in writing before the trust
 1042  instrument is executed:
 1043         1. Unless specifically disqualified by the terms of the
 1044  trust instrument, any person, regardless of his or her
 1045  residence, including a family member, friend, or corporate
 1046  fiduciary is eligible to serve as a trustee.
 1047         2. Any person, including an attorney, who serves as a
 1048  trustee is entitled to receive reasonable compensation for
 1049  serving as trustee.
 1050         3. Compensation payable to the trustee is in addition to
 1051  any attorney fees payable to the attorney or the attorney’s firm
 1052  for legal services rendered to the trustee.
 1053         (b) The settlor must execute a written statement
 1054  acknowledging that the disclosures required by this subsection
 1055  were made before the execution of the trust instrument. The
 1056  written acknowledgment must be in a separate writing from the
 1057  trust instrument, but may be annexed to the trust instrument.
 1058  The written acknowledgment may be executed before or after the
 1059  execution of the trust instrument in which the attorney or
 1060  related person is appointed as the trustee.
 1061         (c) For purposes of this subsection:
 1062         1.An attorney is deemed to have prepared or supervised the
 1063  execution of a trust instrument if the preparation or the
 1064  supervision of the execution of the trust instrument was
 1065  performed by an employee or attorney employed by the same firm
 1066  as the attorney at the time the trust instrument was executed.
 1067         2.a. A person is “related” to an individual if, at the time
 1068  the attorney prepared or supervised the execution of the trust
 1069  instrument, the person is:
 1070         (I) A spouse of the individual;
 1071         (II)A lineal ascendant or descendant of the individual;
 1072         (III) A sibling of the individual;
 1073         (IV) A relative of the individual or of the individual’s
 1074  spouse with whom the lawyer maintains a close, familial
 1075  relationship;
 1076         (V) A spouse of a person described in sub-sub-subparagraphs
 1077  (I)-(IV); or
 1078         (VI) A person who cohabitates with the individual.
 1079         b. An employee or attorney employed by the same firm as the
 1080  attorney at the time the trust instrument is executed is deemed
 1081  to be related to the attorney.
 1082         3.An attorney or person related to the attorney is deemed
 1083  to be appointed in the trust instrument if the trust instrument
 1084  provided the attorney or a person related to the attorney with
 1085  the power to appoint the trustee and the attorney or person
 1086  related to the attorney was appointed using that power.
 1087         (d) This subsection applies to provisions appointing an
 1088  attorney or a person related to the attorney as trustee,
 1089  cotrustee, or as successor or alternate trustee if the person
 1090  appointed is unable or unwilling to serve.
 1091         (e) Other than compensation payable to the trustee, this
 1092  subsection does not limit any rights or remedies that an
 1093  interested person may have at law or equity.
 1094         (f) The failure to obtain a written acknowledgment from the
 1095  settlor under this subsection does not disqualify a trustee from
 1096  serving and does not affect the validity of a trust instrument.
 1097         (g) A written acknowledgment signed by the settlor that is
 1098  in substantially the following form is deemed to comply with the
 1099  disclosure requirements of this subsection:
 1100  
 1101         I, ...(Name)... declare that:
 1102         I have designated ...(my attorney, an attorney employed in
 1103  the same law firm as my attorney, or a person related to my
 1104  attorney)... as a trustee in my trust instrument dated
 1105  _...(Date)....
 1106         Before executing the trust, I was informed that:
 1107         1. Unless specifically disqualified by the terms of the
 1108  trust instrument, any person, regardless of his or her
 1109  residence, including a family member, friend, or corporate
 1110  fiduciary is eligible to serve as a trustee.
 1111         2. Any person, including an attorney, who serves as a
 1112  trustee is entitled to receive reasonable compensation for
 1113  serving as trustee.
 1114         3. Compensation payable to the trustee is in addition to
 1115  any attorney fees payable to the attorney or the attorney’s firm
 1116  for legal services rendered to the trustee.
 1117  
 1118  ...(Settlor)...
 1119  
 1120  ...(Dated)...
 1121  
 1122         (h) This subsection applies to each appointment made
 1123  pursuant to a trust instrument that is:
 1124         1. Executed by a resident of this state on or after October
 1125  1, 2015.
 1126         2. Amended by a resident of this state on or after October
 1127  1, 2015, if the trust instrument appoints the attorney who
 1128  prepared or supervised the execution of the amendment, or a
 1129  person related to such attorney, as trustee.
 1130         Section 9. Section 736.1005, Florida Statutes, is amended
 1131  to read:
 1132         736.1005 Attorney attorney’s fees for services to the
 1133  trust.—
 1134         (1) Any attorney who has rendered services to a trust may
 1135  be awarded reasonable compensation from the trust. The attorney
 1136  may apply to the court for an order awarding attorney attorney’s
 1137  fees and, after notice and service on the trustee and all
 1138  beneficiaries entitled to an accounting under s. 736.0813, the
 1139  court shall enter an order on the fee application.
 1140         (2) If attorney Whenever attorney’s fees are to be paid
 1141  from out of the trust under subsection (1), s. 736.1007(5)(a),
 1142  or s. 733.106(4)(a), the court, in its discretion, may direct
 1143  from what part of the trust the fees shall be paid.
 1144         (a) All or any part of the attorney fees to be paid from
 1145  the trust may be assessed against one or more persons’ part of
 1146  the trust in such proportions as the court finds to be just and
 1147  proper.
 1148         (b) In the exercise of its discretion, the court may
 1149  consider the following factors:
 1150         1. The relative impact of an assessment on the estimated
 1151  value of each person’s part of the trust.
 1152         2. The amount of attorney fees to be assessed against a
 1153  person’s part of the trust.
 1154         3. The extent to which a person whose part of the trust is
 1155  to be assessed, individually or through counsel, actively
 1156  participated in the proceeding.
 1157         4. The potential benefit or detriment to a person’s part of
 1158  the trust expected from the outcome of the proceeding.
 1159         5. The relative strength or weakness of the merits of the
 1160  claims, defenses, or objections, if any, asserted by a person
 1161  whose part of the trust is to be assessed.
 1162         6. Whether a person whose part of the trust is to be
 1163  assessed was a prevailing party with respect to one or more
 1164  claims, defenses, or objections.
 1165         7. Whether a person whose part of the trust is to be
 1166  assessed unjustly caused an increase in the amount of attorney
 1167  fees incurred by the trustee or another person in connection
 1168  with the proceeding.
 1169         8. Any other relevant fact, circumstance, or equity.
 1170         (c) The court may assess a person’s part of the trust
 1171  without finding that the person engaged in bad faith,
 1172  wrongdoing, or frivolousness.
 1173         (3) Except when a trustee’s interest may be adverse in a
 1174  particular matter, the attorney shall give reasonable notice in
 1175  writing to the trustee of the attorney’s retention by an
 1176  interested person and the attorney’s entitlement to fees
 1177  pursuant to this section. A court may reduce any fee award for
 1178  services rendered by the attorney prior to the date of actual
 1179  notice to the trustee, if the actual notice date is later than a
 1180  date of reasonable notice. In exercising this discretion, the
 1181  court may exclude compensation for services rendered after the
 1182  reasonable notice date but before prior to the date of actual
 1183  notice.
 1184         Section 10. Section 736.1006, Florida Statutes, is amended
 1185  to read:
 1186         736.1006 Costs in trust proceedings.—
 1187         (1) In all trust proceedings, costs may be awarded as in
 1188  chancery actions.
 1189         (2) If Whenever costs are to be paid from out of the trust
 1190  under subsection (1) or s. 733.106(4)(a), the court, in its
 1191  discretion, may direct from what part of the trust the costs
 1192  shall be paid. All or any part of the costs to be paid from the
 1193  trust may be assessed against one or more persons’ part of the
 1194  trust in such proportions as the court finds to be just and
 1195  proper. In the exercise of its discretion, the court may
 1196  consider the factors set forth in s. 736.1005(2).
 1197         Section 11. The amendments made by this act to ss. 733.212,
 1198  733.2123, 733.3101, and 733.504, Florida Statutes, apply to
 1199  proceedings commenced on or after July 1, 2015. The law in
 1200  effect before July 1, 2015, applies to proceedings commenced
 1201  before that date.
 1202         Section 12. (1) The amendment made by this act to s.
 1203  733.817(1)(g) and (2)(c), Florida Statutes, is remedial in
 1204  nature, is intended to clarify existing law, and applies
 1205  retroactively to all proceedings pending or commenced on or
 1206  after July 1, 2015, in which the apportionment of taxes has not
 1207  been finally determined or agreed for the estates of decedents
 1208  who die after December 31, 2004.
 1209         (2) The amendment made by this act to s. 733.817(1)(e)3.,
 1210  (3)(e), (3)(g), (4)(b), (4)(c), (4)(d)1.b., (4)(e), (4)(h), and
 1211  (6), Florida Statutes, applies to the estates of decedents who
 1212  die on or after July 1, 2015.
 1213         (3) Except as provided in subsections (1) and (2), the
 1214  amendment made by this act to s. 733.817, Florida Statutes, is
 1215  remedial in nature, is intended to clarify existing law, and
 1216  applies retroactively to all proceedings pending or commenced on
 1217  or after July 1, 2015, in which the apportionment of taxes has
 1218  not been finally determined or agreed and without regard to the
 1219  date of the decedent’s death.
 1220         Section 13. The amendments made by this act to ss. 733.106,
 1221  736.1005, and 736.1006, Florida Statutes, apply to proceedings
 1222  commenced on or after July 1, 2015. The law in effect before
 1223  July 1, 2015, applies to proceedings commenced before that date.
 1224         Section 14. Except as otherwise expressly provided in this
 1225  act, this act shall take effect July 1, 2015.