The crossroads of death and taxes can be baffling for many individuals. The executor or administrator (herein, the “fiduciary”) may be confronted with a bewildering array of returns to file on behalf of the decedent or the estate, and thus seek guidance from a professional. This article provides a basic roadmap of the returns that a fiduciary will likely be required to file.
Income Tax Returns
Income tax reporting for the year of the decedent’s death will most likely reflect a split year. A new taxpayer—the decedent’s estate—comes into being on the date of the decedent’s death. Therefore, if the decedent had sufficient income before death to trigger a filing obligation, the fiduciary will need to file an IRS Form 1040 (and corresponding state income tax return) for the period starting on January 1 and ending on the day preceding the decedent’s death. Similarly, if the estate had sufficient income after the decedent’s death to trigger a filing obligation, the fiduciary will need to file an IRS Form 1041 (and corresponding state fiduciary income tax return) for the period starting on the date of death and ending on a date chosen by the fiduciary, as described below.
The fiduciary may choose the estate’s taxable year as long as that year does not exceed 12 months. One option is to choose the longest permissible period in order to defer the payment of tax for as long as possible. In that case, the fiduciary would chose a fiscal year that ends with the month preceding the date of death. For example, if the decedent died on September 15, 2020, the fiduciary could elect a taxable year that ends on August 30. The first taxable year of the estate would run from September 15, 2020, through August 30, 2021, and the second taxable year would run from September 1, 2021, to August 30, 2022. Given that banks and other institutions typically issue IRS Forms 1099 on a calendar-year basis, choosing a fiscal year that ends in a month other than December will necessitate apportionment of income and deductions between the relevant portions of each calendar year. In the example above, the fiduciary could not simply rely on IRS Forms 1099; instead, the fiduciary would need to consult the monthly bank or other financial statements to apportion the income and deductions between the periods running from September 15, 2020, to December 31, 2020, and then from January 1, 2021, to August 30, 2021. Similarly, the fiduciary would need to consult the statements to apportion income and deductions for the second year between the periods running from September 1, 2021, to December 31, 2021, and then from January 1, 2022, to August 30, 2022.
If the income (and therefore income tax) is minimal, however, or if the fiduciary wishes to simplify accounting for annual income tax reporting purposes, calendar-year reporting for the estate may be chosen, which would correspond with the reporting on IRS Forms 1099. In the example above, where the decedent died on September 15, 2020, the estate’s first taxable year would consist of September 15, 2020, to December 31, 2020, and the second taxable year would be January 1, 2021, to December 31, 2010. If the fiduciary chooses this route, the first tax payment would be due earlier than it would be under the option described above. The fiduciary could simply rely on IRS Forms 1099, however, rather than needing to apportion income and deductions between portions of the calendar year. This approach can alleviate some of the fiduciary’s administrative burden.
Gift and Estate Tax Returns
A fiduciary generally must file an IRS Form 706 (the federal estate tax return) only if the fair market value of the decedent’s gross assets at death plus all taxable gifts made during life (i.e., gifts exceeding the annual exclusion amount for each year) exceed the federal lifetime exemption in effect for the year of death—$11.7 million for 2021. (The threshold that triggers an obligation to file a state estate tax return varies, of course, by state. Many states’ estate tax returns require the preparation and attachment of a federal estate tax return, even if that return need not be filed with the IRS.) Even if the fiduciary is not required to file a federal estate tax return, she may opt to do so. For example, a surviving spouse can effectively inherit the deceased spouse’s unused lifetime exemption amount (a concept often referred to as “portability”), which can reduce or eliminate any federal estate tax on the surviving spouse’s death; in order to elect portability, however, the fiduciary must file an estate tax return. The fiduciary, alternatively, may wish to document the step-up in basis in the decedent’s assets under IRC section 1014. An effective way to do so is to report the fair market value of each asset as of the date of death on IRS Form 706; that value—or, if the return is selected for examination, the value that the IRS and the fiduciary eventually agree upon—becomes the basis of the asset in the hands of the beneficiaries.
The estate tax return is essentially a snapshot of the decedent’s assets at death, along with a summary of prior taxable gifts. It also reports the decedent’s liabilities at death, along with a summary of post-death expenses. All of these can be deducted from the value of the taxable estate, thereby reducing any estate tax due.
Given that an accurate IRS Form 706 requires a summary of all reportable gifts made during a decedent’s life, the fiduciary will need to determine whether any IRS Forms 709 (i.e., federal gift tax returns) were filed or should have been filed. The fiduciary’s job will be much easier if the decedent and his return preparer have maintained copies of all gift tax returns that have been filed. If the decedent filed gift tax returns but the fiduciary cannot access any copies of them, she can request copies from the IRS by using IRS Form 4506; the IRS, however, typically maintains copies for only six years. If gift tax returns have not been filed, the fiduciary will need to scour the decedent’s financial records, for a minimum of six taxable years preceding death, to determine whether the decedent made any gifts in excess of the annual exclusion, and consequently whether any delinquent gift tax returns should be filed. Undergoing this exercise will help the fiduciary determine whether an IRS Form 706 must be filed and, if so, prepare an accurate return.
