The IRS in late September announced how to take advantage of “estate tax exemption portability”. The “estate” of the deceased spouse must file an estate tax return. In other words, the estate must timely file an IRS Form 706 for the surviving spouse to receive an estate tax exemption not used by the deceased spouse. This will get interesting where a child or other family member of the deceased spouse is the executor and not the surviving spouse. Also who is the “executor” if there is no probate? Likely the successor in interest, successor trustee of living trust or whoever would have priority as personal representative if there were to be a probate.
It is also interesting in that it says no election needs to be made on the form. The form just needs to be filed. The problem is few decedents will need to file such a form. Only needed if the estate is over $5,000,000.
The announcement is at http://www.irs.gov/pub/irs-drop/n-2011-82.pdf
By Kevin Staker
California Estate Planning Blog by Kevin Staker 