| 1 | A bill to be entitled |
| 2 | An act relating to probate of an estate; providing a short |
| 3 | title; creating s. 198.46, F.S.; providing definitions; |
| 4 | imposing a retaliatory tax on property of a nonresident |
| 5 | decedent when the nonresident's state of domicile imposes |
| 6 | estate, inheritance, or other death taxes upon a resident |
| 7 | of this state; providing a limitation; specifying tax rate |
| 8 | criteria; providing tax payment requirements; creating s. |
| 9 | 733.1051, F.S.; authorizing a court to construe the terms |
| 10 | of certain wills for certain purposes under certain |
| 11 | circumstances; providing definitions; providing criteria |
| 12 | for court construction of a will; providing for |
| 13 | nonapplication to certain dispositions; authorizing a |
| 14 | personal representative to take certain actions without |
| 15 | court order pending a determination of estate |
| 16 | distribution; limiting personal representative liability; |
| 17 | preserving certain rights to construe a will; providing |
| 18 | for retroactive operation; providing application; |
| 19 | providing effective dates. |
| 20 |
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| 21 | Be It Enacted by the Legislature of the State of Florida: |
| 22 |
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| 23 | Section 1. This act may be cited as the "Florida Taxpayers |
| 24 | Protection Act." |
| 25 | Section 2. Section 198.46, Florida Statutes, is created to |
| 26 | read: |
| 27 | 198.46 Retaliatory estate, inheritance, or other death |
| 28 | taxes.- |
| 29 | (1) For purposes of this section, the term: |
| 30 | (a) "Nonresident" means any person who is not a resident |
| 31 | of this state but is a resident of the United States. |
| 32 | (b) "State of domicile" means the state where a person is |
| 33 | a resident. |
| 34 | (2) A tax is imposed upon the transfer of property located |
| 35 | in this state of every person who at the time of death was a |
| 36 | nonresident. The tax is imposed only if the nonresident's state |
| 37 | of domicile imposes an estate, inheritance, or other death tax |
| 38 | upon the transfer of the property of a resident of this state |
| 39 | that is located in that state and the amount of tax is in excess |
| 40 | of the amount of such taxes that would be imposed by this state |
| 41 | on transfers of such nonresident's similar property located in |
| 42 | this state. |
| 43 | (3) The tax due under this section shall be equal to the |
| 44 | tax that a nonresident would have to pay under the laws of his |
| 45 | or her state of domicile if he or she were a resident of this |
| 46 | state and the nonresident's property located in this state were |
| 47 | located in the nonresident's state of domicile and the |
| 48 | nonresident's property located in the state of domicile were |
| 49 | located in this state. |
| 50 | (4) Notwithstanding any other provision of this chapter, |
| 51 | the tax imposed by this section is due and payable, and tax |
| 52 | returns are due, on or before the last day prescribed by the |
| 53 | laws of the nonresident's state of domicile for the payment of |
| 54 | tax or the filing of returns. |
| 55 | Section 3. Effective upon this act becoming a law, section |
| 56 | 733.1051, Florida Statutes, is created to read: |
| 57 | 733.1051 Limited judicial construction of will with |
| 58 | federal tax provisions.- |
| 59 | (1) Upon the application of a personal representative or a |
| 60 | person who is or may be a beneficiary who is affected by the |
| 61 | outcome of a court's construction, a court at any time may |
| 62 | construe the terms of a will to define the respective shares or |
| 63 | determine beneficiaries, in accordance with the intention of a |
| 64 | testator, if a disposition occurs during the applicable period |
| 65 | and the will contains a provision that: |
| 66 | (a) Includes a disposition formula referring to the terms |
| 67 | "unified credit," "estate tax exemption," "applicable exemption |
| 68 | amount," "applicable credit amount," "applicable exclusion |
| 69 | amount," "generation-skipping transfer tax exemption," "GST |
| 70 | exemption," "marital deduction," "maximum marital deduction," |
| 71 | "unlimited marital deduction," or "maximum charitable |
| 72 | deduction"; |
| 73 | (b) Measures a share of an estate based on the amount that |
| 74 | may pass free of federal estate tax or the amount that may pass |
| 75 | free of federal generation-skipping transfer tax; |
| 76 | (c) Otherwise makes a disposition referring to a |
| 77 | charitable deduction, marital deduction, or another provision of |
| 78 | federal estate tax or generation-skipping transfer tax law; or |
| 79 | (d) Appears to be intended to reduce or minimize the |
| 80 | federal estate tax or generation-skipping transfer tax. |
| 81 | (2) For purposes of this section: |
| 82 | (a) The term "applicable period" means a period beginning |
| 83 | January 1, 2010, and ending on the end of the day on the earlier |
| 84 | of December 31, 2010, or the day before the date that an act |
| 85 | becomes law that repeals or otherwise modifies or has the effect |
| 86 | of repealing or modifying s. 901 of The Economic Growth and Tax |
| 87 | Relief Reconciliation Act of 2001. |
| 88 | (b) A "disposition occurs" when the testator dies. |
| 89 | (3) In construing the will, the court shall consider the |
| 90 | terms and purposes of the will, the facts and circumstances |
| 91 | surrounding the creation of the will, and the testator's |
| 92 | probable intent. In determining the testator's probable intent, |
| 93 | the court may consider evidence relevant to the testator's |
| 94 | intent even though the evidence contradicts an apparent plain |
| 95 | meaning of the will. |
| 96 | (4) This section does not apply to a disposition that is |
| 97 | specifically conditioned upon no federal estate or generation- |
| 98 | skipping transfer tax being imposed. |
| 99 | (5)(a) Unless otherwise ordered by the court, during the |
| 100 | applicable period and without court order, the personal |
| 101 | representative administering a will containing one or more |
| 102 | provisions described in subsection (1) may: |
| 103 | 1. Delay or refrain from making any distribution. |
| 104 | 2. Incur and pay fees and costs reasonably necessary to |
| 105 | determine his or her duties and obligations, including, but not |
| 106 | limited to, compliance with provisions of existing and |
| 107 | reasonably anticipated future federal tax laws. |
| 108 | 3. Establish and maintain reserves for the payment of such |
| 109 | fees and costs and federal taxes. |
| 110 | (b) The personal representative shall not be liable for |
| 111 | his or her actions as provided in this subsection made or taken |
| 112 | in good faith. |
| 113 | (6) The provisions of this section are in addition to, and |
| 114 | not in derogation of, rights under the common law to construe a |
| 115 | will. |
| 116 | (7) This section is remedial in nature and intended to |
| 117 | provide a new or modified legal remedy. This section shall |
| 118 | operate retroactively to January 1, 2010. |
| 119 | Section 4. Except as otherwise expressly provided in this |
| 120 | act, this act shall take effect July 1, 2010, and section |
| 121 | 198.46, Florida Statutes, as created by this act, shall apply to |
| 122 | nonresidents who die after June 30, 2010. |