US Legal’s Survivor’s Guide to A Death in the Family
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US LEGAL, INC.
US Legal’s Survivor’s
Guide to a Death in
the Family
Copyright © 2009 by US Legal, Inc.
Neal Walker, Staf Attorney
July 2009
US Legal’s Survivor’s Guide to A Death in the Family
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This guide discusses the practical as well as legal tasks that confront
survivors―primarily the decedent’s surviving spouse or domestic
partner―upon the death of a family member, with particular attention to the
following matters:
1. Obituary.
2. Burial insurance.
3. Funeral and burial rights, arrangements, and expenses.
a. Cremation services.
b. Scattering of ashes within National and National Military Parks.
c. Burial at sea.
4. Anatomical and whole-body gifts.
5. How Social Security can help when a family member dies.
6. Essential information and documents needed by survivor.
7. Example of probate information form.
8. Support groups.
9. Changing title to decedent’s motor vehicle.
10. Access to decedent’s safe-deposit box.
11. Non-probate distribution of sums on deposit with fnancial institutions
to decedent’s spouse or heirs.
12. Homeowner’s or renter’s insurance.
13. Vacant dwelling insurance.
14. Decedent’s last will.
15. Legal advice and probate proceedings.
16. Fees received by personal representative.
17. Personal representative and survivor’s responsibility for the income tax
liability of the decedent and the estate of decedent.
18. Decedent’s income-tax returns (Form 1040).
19. Income tax return of an estate (Form 1041).
20. Claiming a decedent’s income-tax refund (Form 1310).
21. Claiming benefts under a life-insurance policy.
22. Survivor’s eligibility for either rollover or distribution from a decedent’s
qualifed retirement plan or IRA.
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1. OBITUARY.
Both newspaper and online obituary notices are available. Newspaper’s
policies vary, with some publishing only obituaries written by the
newspaper’s staf, and others accepting submitted obituaries. An online
search under “obituary” will reveal many obituary websites. The Atlanta
Journal-Constitution’s website is one example of the many obituary
information and services that are available online; please see:
http://www.ajc.com/info/content/services/info/obituaryhelp.html .
2. BURIAL INSURANCE.
According to the Insurance Information Institute, “‘[b]urial insurance’ usually
refers to a whole life insurance policy with a death beneft of from $5,000 to
$25,000.” Please see: http://www.iii.org/individuals/life/special/burial/ .
Further information on burial and other forms of insurance is available at:
http://www.iii.org/insurance_topics/ . Insurance is a regulated industry. Each
state has a Department of Insurance. A consumer can view the website of
any state’s Department of Insurance simply by typing the name of a state
followed by the phrase “department of insurance” in the search window of a
web browser. Each state’s Department of Insurance has consumer
information available on its website.
3. FUNERAL AND BURIAL RIGHTS, ARRANGEMENTS, AND
EXPENSES.
Burial rights and anatomical gifts are governed by the law of the state in
which the decedent resided or, if the decedent’s body is not returned to the
decedent’s state of residence, then of the state in which the body is present.
An example of one state’s burial and anatomical gift statute may be found
online at the Oregon Legislature’s website:
http://www.leg.state.or.us/ors/097.html . The National Funeral Directors’
Association ofers information about funerals to the public at:
http://www.nfda.org/index.php/public . An online search under “alternative
funerals” will reveal numerous local organizations throughout the United
States that ofer alternative funeral arrangements including cremation. The
United States Conference of Catholic Bishops declares that the Roman
Catholic Church prefers burial but permits both cremation and burial at sea;
please see: http://www.usccb.org/liturgy/cremation.shtml . The American
Association of Retired Persons (AARP) ofers a summary of Preneed Funeral
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and Burial Agreements; please see
http://assets.aarp.org/rgcenter/consume/d17093_preneed.pdf . The states
regulate the funeral and burial business. Consumer information about funeral
and burial expenses as well as providers is available online from many
sources, including by way of example the following:
California Department of Consumer Afairs:
http://www.cfb.ca.gov/consumer/funeral.shtml .
Connecticut Care Planning Council ― Funeral and Burial Preplanning:
http://www.careconnecticut.org/list22_ct_Funeral_Burial_Pre-Planning_Pre-
Need.htm .
Florida Attorney General:
http://myfloridalegal.com/pages.nsf/main/fe6c72fa035a16bc85256cc9005
14e6a!OpenDocument .
Georgia Secretary of State: http://sos.georgia.gov/Securities/ceminfo.htm .
Maryland Division of Occupational and Professional Licensing:
http://www.dllr.state.md.us/license/cem/consumertips.htm .
Michigan Department of Human Services:
http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro19.shtm .
New York State Department of Health:
http://www.health.state.ny.us/professionals/patients/patient_rights/funeral
.htm .
Oregon Department of Finance (Prearranged Funeral Plans):
http://dfcs.oregon.gov/preneed.html .
Texas Funeral Service Commission: http://www.tfsc.state.tx.us/ .
U.S. Federal Trade Commission:
http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro19.shtm .
Wisconsin Department of Health Services ― Funeral and Cemetery Aids
Program: http://dhs.wisconsin.gov/em/WFCAP/index.htm .
a. Cremation Services.
Information about cremation services and providers is available online; see,
for example: http://www.cremation.com/ ;
http://www.thefuneraldirectory.com/cremationfaq.html ; and
http://www.cremationassociation.org/html/for_consumers.html .
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b. Scattering of Ashes within National Parks and National
Military Parks.
As a general rule, National Parks allow the scattering of ashes within the
boundaries of a national park, but require application and a special use
permit to do so. The scope of authorization and the procedures vary from
park-to-park. Interested persons should frst learn the rules, the information
is available online, then follow the procedures and rules applicable to the
chosen park. Examples of online information currently available include:
Mount Rainer NP - http://www.nps.gov/mora/planyourvisit/upload/AshesForm-
3.pdf ; Grand Teton NP - http://www.nps.gov/grte/planyourvisit/permits.htm ;
Yosemite NP - http://www.nps.gov/yose/planyourvisit/ashes.htm ;
Shenandoah NP - http://www.nps.gov/shen/planyourvisit/permits.htm ;
Fredericksburg and Spotsylvania Battlefelds NMP -
http://www.nps.gov/frsp/parkmgmt/lawsandpolicies.htm .
c. Burial at Sea.
The United States Navy Mortuary Afairs Department ofers burial at sea for
Navy and Marine veterans and their family members. For general information
see: U.S. Navy ― Burial at Sea: http://www.history.navy.mil/faqs/faq85-
1.htm . For eligibility requirements and instructions, please see:
http://www.navy.mil/navydata/questions/burial.html , or call toll-free 1-866-
787-0081 and follow the voice menu.
4. ANATOMICAL AND WHOLE-BODY GIFTS.
The full text of the Revised Uniform Anatomical Gift Act (2006) may be found
online at http://www.anatomicalgiftact.org/DesktopDefault.aspx?
tabindex=1&tabid=63 . Information about anatomical and whole-body gifts is
available online; by way of example, please see:
http://www.anatomicgift.com/ ; http://dms.dartmouth.edu/anatomy/gifts/ ;
http://www.biogift.org/ ; http://dhs.wisconsin.gov/rl_dsl/Publications/09-
010.htm ; and
http://medschool.duke.edu/modules/som_anat_gft_pgm/index.php?id=1 .
Anatomical gift forms that are valid for each state are available at the US
Legal Forms website:
http://www.uslegalforms.com/powerofattorney/anatomicalgifts/ .
5. HOW SOCIAL SECURITY CAN HELP WHEN A FAMILY MEMBER
DIES.
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Social Security should be notifed as soon as possible when a person dies. In
most cases, the funeral director will report the person's death to Social
Security. You will need to furnish the funeral director with the deceased's
Social Security number so he or she can make the report.
Some of the deceased's family members may be able to receive Social
Security benefts if the deceased person worked long enough under Social
Security to qualify for benefts. You should get in touch with Social Security
as soon as you can to ensure the family receives all of the benefts to which
it may be entitled. Please read the following information carefully to learn
what benefts may be available.
One-Time Payment. A one-time payment of $255 can be paid to the
surviving spouse if he or she was living with the deceased; or, if living apart,
was receiving certain Social Security benefts on the deceased's record. If
there is no surviving spouse, the payment is made to a child who is eligible
for benefts on the deceased's record in the month of death.
Monthly Benefts. Certain family members may be eligible to receive
monthly benefts, including:
A widow or widower age 60 or older (age 50 or older if disabled);
A surviving spouse at any age who is caring for the deceased's child
under age 16 or disabled;
An unmarried child of the deceased who is:
Younger than age 18 (or age 18 or 19 if he or she is a full-time
student in an elementary or secondary school); or
Age 18 or older with a disability that began before age 22;
Parents, age 62 or older, who were dependent on the deceased for at
least half of their support; and
A surviving divorced spouse, under certain circumstances.
MANDATORY RETURN OF BENEFIT. If the deceased was receiving
Social Security benefts, you must return the beneft received for
the month of death or any later months. For example, if the person
dies in July, you must return the beneft paid in August. If benefts
were paid by direct deposit, contact the bank or other fnancial
institution. Request that any funds received for the month of death
or later be returned to Social Security. If the benefts were paid by
check, do not cash any checks received for the month in which the
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person dies or later. Return the checks to Social Security as soon as
possible.
However, eligible family members may be able to receive death benefts for
the month in which the benefciary died.
Contacting Social Security. The Social Security website is a valuable
resource for information about all of Social Security's programs. There are a
number of things you can do online at: http://www.ssa.gov/ .
In addition to using the Social Security website, you can call the Social
Security Administration toll-free at 1-800-772-1213 . The Social Security
Administration can answer specifc questions from 7 a.m. to 7 p.m.,
Monday through Friday . It can provide information by automated phone
service 24 hours a day. (You can use the automated response system to tell
it a new address or request a replacement Medicare card.) If you are deaf or
hard of hearing, you may call the TTY number, 1-800-325-0778 .
The Social Security Administration treats all calls confdentially to ensure
that you receive accurate and courteous service. That is why a second Social
Security representative monitors some telephone calls.
Additional information about the Social Security Administration’s survivor’s
benefts program is available at http://www.ssa.gov/pgm/links_survivor.htm .
6. ESSENTIAL INFORMATION AND DOCUMENTS NEEDED BY
SURVIVOR.
The descendant’s widow, widower, or other survivor might need other
documents or information, but at a minimum, the survivor will need the
following information and documents:
Decedent’s Social Security number.
Certifed copies of the decedent’s death certifcate.
Marriage certifcates, if any; divorce decrees, if any.
Original life-insurance policies.
Decedent’s original last will.
If Decedent’s original last will is lost or unavailable (perhaps
believed to be in safe deposit box), then copy of decedent’s last
will.
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Safe-deposit box institution, number, and key. If no key is available,
the institution probably will charge a fee to drill the box and remove
the existing lock.
Bank and brokerage account information (name of institution,
account numbers, account balances, names of any pay-on-death
(POD) benefciaries of decedent’s bank accounts, and names of any
transfer-on-death (TOD) benefciaries of decedent’s brokerage
accounts.
IRA, 401(k) plan, 403(b) plan, and any annuity information (name of
custodian, account numbers, account balances, names of
designated benefciaries).
Names and addresses of decedent’s devisees (the persons to whom
decedent devised property in decedent’s last will).
Names and addresses of decedents heirs (decedent’s spouse,
descendents, siblings, parents (if alive), and grandparents (if alive).
Names and addresses of any persons with whom the decedent held
title to property, real or personal, with others, whether as joint
tenants, tenants-in-common, or co-partners.
Names and addresses of any persons with whom decedent engaged
in any closely-held business, whether as partner, shareholder, or
member.
Names, addresses, account numbers, and account balances of
decedent’s creditors (including any unpaid health-care providers).
Name of decedent’s lawyers.
Name of decedent’s tax preparer.
7. EXAMPLE OF PROBATE INFORMATION FORM (The Form
Illustrates the Kind of Information Required of an Executor of a
Decedent’s Estate):
A. PROBATE INFORMATION FORM
Decedent's full name [ ] Married [ ] Single [ ] Divorced [ ]
Widowed
Decedent's Residence address at death (street, city, state)
Decedent’s Date of birth Date and place of death
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Proof of death: [ ] Death certifcate [ ] Obituary [ ] Other (specify)
The decedent died: [ ] with a will [ ] without a will. Date of will
(and codicils)
Requested action: appointment of [ ] administrator [ ] executor
[ ] curator [ ] probate of will
Name of person making request
Mailing address
Basis for request: [ ] executor named in will [ ] sole distributee [ ]
other distributee [ ] creditor
Name of person seeking appointment
Day telephone Night telephone
Residence address
Mailing address, if diferent
Name of any additional person seeking appointment
Day telephone Night telephone
Residence address
Mailing address, if diferent
Name of assisting attorney, if any Telephone
Attorney's mailing address
The total value of the decedent's real and personal estate [ ] did
[ ] did not exceed $15,000 on the date of death.
I hereby certify that to the best of my knowledge and belief this
is an accurate statement of facts, and I acknowledge a
continuing legal duty to report any later discovered errors or
inconsistencies to the Clerk of the Court.
B. INFORMATION TO BE FURNISHED BY EACH PERSON SEEKING
APPOINTMENT
Are you a person under a disability? [ ] yes [ ] no.
Have you ever been convicted of a felony? [ ] yes [ ] no.
Have you ever fled for bankruptcy? [ ] yes [ ] no.
Are you now, or have you ever been, an attorney at law in
Virginia or elsewhere? [ ] yes [ ] no.
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I (we) hereby certify that to the best of my (our) knowledge and
belief this is an accurate statement of facts, and I (we)
acknowledge a continuing duty to report any later discovered
errors or inconsistencies to the Clerk of Court.
8. SUPPORT GROUPS.
Many grief and bereavement support groups maintain websites, examples of
which are as follows:
Alive Alone - http://www.alivealone.org/ .
A support group for the education of bereaved parents, whose only child
or all children are deceased.
Child Suicide - http://childsuicide.homestead.com .
The Compassionate Friends - http://www.compassionatefriends.org/ .
A national self-help support organization, which assists families in the
positive resolution of grief following the death of a child, and provides
information to help others be supportive.
Gift from Within - PTSD Resources for Survivors and Caregivers:
http://www.giftfromwithin.org/html/groups.html#groups .
Griefshare: Grief Recovery Support Groups - http://www.griefshare.org .
Features resources to assist and encourage people grieving the death of a
friend or family member, and includes database of more than 1200
listings of support groups.
Helping All Loved Ones Survive, Inc - http://www.halos.org .
HALOS is a nonproft organization that provides information, emotional
support, and referrals to surviving friends and family members of
homicide victims.
Military.com: http://www.military.com/benefts/survivor-benefts/tragedy-
assistance-program-for-survivors .
National Donor Family Council - http://www.donorfamily.org . National
organization for families whose loved ones have donated organs or
tissues upon death. Includes grief resources, message board, pen pals,
newsletter. Free membership.
National Resource Directory – An Online Partnership for Wounded, Ill, and
Injured Service Members, Veterans, their Families, and those Who Support
Them:
https://www.nationalresourcedirectory.org/nrd/public/DisplayPage.do?
parentFolderId=6645 .
Survivors of Suicide: http://www.survivorsofsuicide.com/ .
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Suicide Survivor Support Group:
http://www.yellowribbon.org/SurvivorSupportGroups.html .
TAPS - Tragedy Assistance Programs for Survivors: http://www.taps.org/ . A
national non-proft organization providing services to all those who have
lost a loved one on active duty with the Armed Forces. Ofers a survivor
peer support network. Grief counseling referral and case worker
assistance and crisis information.
Twinless Twins - http://www.twinlesstwins.org/ . A support group for twins
and other multiples that have experienced the death of their twin.
Widows Too Young - http://www.widowstooyoung.com .
A support group for young widows and widowers, to help them start life
again.
9. CHANGING TITLE TO DECEDENT’S MOTOR VEHICLE.
Many states have adopted a statute that authorizes transfer of title to a
motor vehicle titled in the name of a decedent solely upon the records of the
agency charged with licensing vehicles in that state. The requirements and
procedure for such a transfer of title in New Jersey are online at:
http://www.state.nj.us/mvc/Vehicle/TransferringVehicle.htm . For Nebraska
residents, online information regarding transfer of title to a decedent’s
vehicle, ATV, or boat is available at:
http://www.dmv.ne.gov/dvr/mvtitles/transdecednt.html .
10. ACCESS TO DECEDENT’S SAFETY-DEPOSIT BOX.
Access to safe-deposit boxes is discussed at
http://www.foreignborn.com/self-help/banking/10-sd_boxes.htm . As a general
rule, only the owner/renter or a person authorized by the owner/renter upon
the bank’s records may access a safe-deposit box. Upon the death of a
decedent who has rented a box in his or her sole name and who has not
granted access privileges to anyone else, a bank as a general rule will open
the box only upon a court order. If the original of the decedent’s last will is in
the safe-deposit box, then to gain access to the box, an heir of the decedent
may have to initiate a proceeding for administration of an intestate estate, or
alternatively, attempt proof a lost will, and then ultimately obtain either an
order of administration of an intestate estate or letters testamentary upon
proof of a lost will in order to gain access to the safe-deposit box. In the
event the box contains the original will of the decedent, and it is the
decedent’s last will, the probate proceeding then might need to be modifed
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and all interested persons might need to be re-notifed of the existence of
the original will.
11. NON-PROBATE DISTRIBUTION OF SUMS ON DEPOSIT WITH
FINANCIAL INSTITUTIONS TO DECEDENT’S SPOUSE OR HEIRS.
Many states have adopted a statute, typically located in the state’s banking
code, that authorizes distribution upon written statement or afdavit of the
depositor’s heirs or devisees of a sum on deposit in bank accounts when the
sum on deposit is less than the amount stated in the statute. Georgia, for
example, authorizes such a distribution when the amount on deposit is less
than $10,000 and the depositor dies intestate (that is, without a valid will).
Georgia Code § 7-1-239.
12. HOMEOWNER’S OR RENTER’S INSURANCE.
The survivor should examine the decedent’s homeowner’s or renter’s
insurance policy. For information regarding such insurance, please see the
website of the Insurance Information Institute, at:
http://www.iii.org/individuals/HomeownersandRentersInsurance/ . Typically
the homeowner’s or renter’s policy excludes coverage for a vacant dwelling.
13. VACANT DWELLING INSURANCE.
Not all property and casualty insurers ofer vacant dwelling insurance. Those
that ofer it generally ofer it for periods of 3, 6, or 12 months. For
information about it, please see the following websites for examples of
companies or agencies that ofer it and the conditions of coverage.
• Foremost Insurance Group - http://www.foremost.com/products/vacant-
home/index.htm ;
• Shelly, Middlebrooks O’Leary, Inc. - http://www.shellyins.com/vacant-
dwelling-insurance.php ;
• Southern Cross Underwriters -
http://www.universalspecialty.com/prod_vacant_dwellings.html ;
• Thum Insurance - http://www.thuminsurance.com/content.aspx?
sectionid=2&contentid=84 .
14. DECEDENT’S LAST WILL.
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The decedent’s last will is a very signifcant document: it contains the
decedent’s fnal statement before witnesses of how he or she wishes to
dispose of his or her remaining property. The decedent may have made
other legal arrangements for the disposition of particular kinds of property,
such as a pay-on-death (POD) designation for a bank account, or a transfer-
on-death (TOD) designation for brokerage accounts. If so, then those
designations―and not the decedent’s will―control the disposition of those
assets. Bear in mind that any contractual or gratuitous disposition of
property previously made by the decedent has legal priority over the
decedent’s dispositive scheme as expressed in the will. The dispositive
scheme expressed in the decedent’s last will only controls property not
otherwise legally disposed of by the decedent.
That said, the decedent’s last will remains a signifcant document in every
estate. If any prior disposition of property fails ― for instance, if the
decedent lacked capacity at the time of the prior transaction ― then the will
controls the disposition of that property.
Many states have laws that require any person in possession of a decedent’s
will to deliver it over upon the decedent’s death either to the person
nominated as personal representative in the will or to any person appointed
by a court of competent jurisdiction as the personal representative of the
decedent’s estate.
No person other than the maker of a will has legal authority to destroy or
conceal a will.
15. LEGAL ADVICE AND PROBATE PROCEEDINGS.
A decedent’s survivor always needs legal advice, and generally the sooner
the better, because property rights exist in a legal landscape. Probate law is
fundamentally about property rights, titles, and interests. Probate is the legal
post-mortem (which simply means after death) process by which a court-
appointed personal representative acting independently of the court but
under court supervision and ultimately accountable to the court administers
the decedent’s estate.
Personal Representative’s Duties. The duties of a personal
representative are to collect all the decedent’s assets, pay the creditors, and
distribute the remaining assets to the decedent’s devisees or heirs. The
personal representative must also perform the following duties:
Apply for an employer identifcation number (EIN) for the estate.
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File both the decedent’s income-tax return and the estate’s income-tax
return when due.
Pay the tax determined up to the date of discharge from duties.
Probate terminology.
Testate means to die with a valid will; intestate means to die without a
valid will.
Devisee is a person who takes under a decedent’s will. Heir is a person
who takes under a state’s law of intestate succession.
Personal representative is the person in charge of an estate. Personal
representative is the ofcial term in many states; other states retain
the older terms executor (or executrix) for testate estates, and
administrator (or adminstratrix) for intestate estates. The IRS uses the
term personal representative to mean anyone who is in charge of the
decedent’s property.
Employer Identifcation Number (EIN). The frst action a personal
representative should take is to apply to the IRS for an EIN. You should apply
for this number as soon as possible because you need to enter it on returns,
statements, and other documents that you fle concerning the estate. You
also must give the number to payers of interest and dividends and other
payers who must fle a return concerning the estate. You can get an EIN by
applying online at www.irs.gov/businesses , or by calling 1-800-829-4933 ,
Monday through Friday. Generally, if you apply online, you will receive your
EIN immediately upon completing the application. You can also apply using
Form SS-4, Application for Employer Identifcation Number. Generally, if you
apply by mail, it takes about 4 weeks to get your EIN.
Forms 1099. Payers of interest and dividends report amounts to the IRS on
Form 1099 using the identifcation number of the person to whom the
account is payable. After a decedent’s death, the Forms 1099 must reflect
the identifcation number of the estate or benefciary to whom the amounts
are payable. The personal representative handling the estate must furnish
the this identifcation number to the payer.
Form W-9. If the estate or a survivor may receive interest or dividends after
being informed of the decedent’s death, the payer should give the personal
representative (or the survivor) a Form W-9, Request for Taxpayer
Identifcation Number and Certifcation (or a similar substitute form).
Complete this form to inform the payer of the estate’s (or if completed by
the survivor, the survivor’s) identifcation number and return it to the payer.
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Insolvent Estate. A decedent’s estate might be insolvent, that is, it’s assets
might be insufcient to pay all the decedent’s debts. In that event, the debts
due the United States must be paid frst. Both the decedent’s federal income
tax liabilities at the time of death and the estate’s income tax liability are
debts due the United States. See IRS Publication 559 – Survivors, Executors,
and Administrators, p. 3: http://www.irs.gov/pub/irs-pdf/p559.pdf .
Spouse’s Elective Share. A spouse under the laws of the state in which
the married couple resided frequently has a statutory right to an elective
share of a testate decedent’s estate, when the decedent’s will gives the
spouse a lesser amount than the amount of the statutory elective share. The
elective share amount generally is stated as a percentage of the decedent’s
estate. For examples of elective share statutes, see:
https://www.oregonlaws.org/ors/114.105.html - Oregon;
http://delcode.delaware.gov/title12/c009/index.shtml - Delaware; and
http://law.justia.com/alabama/codes/30792/43-8-70.html - Alabama.
16. FEES RECEIVED BY PERSONAL REPRESENTATIVES.
All personal representatives must include in their gross income fees paid to
them from an estate. If paid to a professional executor or administrator, self-
employment tax also applies to such fees. For a non-professional executor or
administrator (a person serving in such capacity in an isolated instance, such
as a friend or relative of the decedent), self-employment tax only applies if a
trade or business is included in the estate’s assets, the executor actively
participates in the business, and the fees are related to operation of the
business.
17. PERSONAL REPRESENTATIVE AND SURVIVOR’S RESPONSIBILITY
FOR THE INCOME-TAX LIABILITY OF THE DECEDENT AND THE
ESTATE OF DECEDENT.
All persons interested or involved in a decedent’s estate should be aware of
the federal tax laws regarding the fnal income-tax return of a decedent, as
well as the potential liability to the IRS of those who exercise custody or
control of the decedent’s assets.
18. DECEDENT’S INCOME-TAX RETURNS (Form 1040).
Final Income-Tax Return. The personal representative must fle the fnal
income tax return (Form 1040) of the decedent for the year of death and any
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returns not fled for preceding years. A surviving spouse, under certain
circumstances, may have to fle the returns for the decedent.
Returns for Preceding Years. If an individual died after the close of the
tax year, but before the return for that year was fled, the return for the year
just closed will not be the fnal return. The return for that year will be a
regular return and the personal representative must fle it.
Joint Return. Generally, the personal representative and the surviving
spouse can fle a joint return for the decedent and the surviving spouse.
However, the surviving spouse alone can fle the joint return if no personal
representative has been appointed before the due date for fling the fnal
joint return for the year of death. A surviving spouse who fles a joint return
for the year of death may qualify for special tax rates for the following 2
years.
Qualifying Widows and Widowers. If the decedent died within the 2 years
preceding the year for which the widow or widower’s return is being fled, the
widow(er) may be eligible to claim the fling status of qualifying widow(er)
with dependent child can qualify to use the married-fling-jointly tax rates.
Surviving Spouse’s Remarriage. A fnal joint return with the decedent
cannot be fled if the surviving spouse remarried before the end of the year
of the decedent’s death. The fling status of the decedent in this instance is
married fling a separate return.
19. INCOME TAX RETURN OF AN ESTATE (Form 1041).
An estate is a taxable entity. An estate is a taxable entity, separate and
apart from the decedent and comes into being with the death of the
individual. It exists until the fnal distribution of its assets to the heirs and
other benefciaries. The income earned by the assets during this period must
be reported to the IRS by the estate under the conditions described in IRS
Publication 559. The tax generally is fgured in the same manner and on the
same basis as for individuals. The estate’s income, like an individual’s
income, must be reported annually on either a calendar or fscal year basis.
The personal representative chooses the estate’s accounting period when
fling its frst Form 1041. The estate’s frst tax year can be any period that
ends on the last day of a month and does not exceed 12 months.
Filing Requirements. Every domestic estate with gross income of $600 or
more during a tax year must fle a Form 1041. If one or more of the
benefciaries of the domestic estate are nonresident alien individuals, the
US Legal’s Survivor’s Guide to A Death in the Family
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personal representative must fle Form 1041, even if the gross income of the
estate is less than $600.
IRS Publication 559. A survivor who wishes to know the income tax duties
and liabilities of a personal representatives should download and study IRS
Publication 559, entitled “Survivors, Executors, and Administrators”:
http://www.irs.gov/pub/irs-pdf/p559.pdf .
20. CLAIMING A DECEDENT’S INCOME-TAX REFUND (Form 1310).
A return should be fled to obtain a refund if tax was withheld from salaries,
wages, pensions, or annuities, or if estimated tax was paid, even if a return is
not required to be fled. Also, the decedent may be entitled to other credits
that result in a refund. Generally, a person who is fling a return for a
decedent and claiming a refund must fle Form 1310 with the return.
However, if the person claiming the refund is a surviving spouse fling a joint
return with the defendant, or a court-appointed or certifed personal
representative fling an original return for the decedent, Form 1310 is not
needed. The personal representative must attach to the return a copy of the
court certifcate showing that he or she was appointed the personal
representative. For additional information on claiming a refund, see IRS
Publication 559, Survivors, Executors, and Administrators, p.4, at:
http://www.irs.gov/pub/irs-pdf/p559.pdf .
21. CLAIMING BENEFITS UNDER A LIFE-INSURANCE POLICY.
How-to-Claim Death Benefts. For information on how to claim death
benefts upon a policy of life insurance see: “Filing a Life-Insurance Claim”:
http://www.acli.com/ACLI/Consumers/Life+Insurance/Filing+a+Claim/ ; and
“How to File Life-Insurance Claims”:
http://www.quickquote.com/liflehow.html .
For Taxable Estates Only . Claimants of decedent’s whose estate’s are
taxable under either the United States Estate Tax or Generation-Skipping
Transfer Tax should ask the insurance company to complete and deliver to
the executor of the decedent’s estate an IRS Form 712 contemporaneously
with any distribution to a benefciary under the policy. The executor of the
decedent’s estate must submit a completed and executed Form 712 with the
Form 706, the United States Estate Tax or Generation-Skipping Transfer Tax
return.
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VA Policies. To fle a claim for benefts under a Veterans’ Administration
life-insurance policy, see:
http://www.insurance.va.gov/inForceGliSite/claims/deathClaims.htm .
22. SURVIVOR’S ELIGIBILITY FOR EITHER ROLLOVER OR
DISTRIBUTION FROM A DECEDENT’S QUALIFIED RETIREMENT
PLAN OR IRA.
Discussion of the rules regarding rollover or distributions from a decedent’s
qualifed retirement plan or individual retirement account is beyond the
scope of this guide. Any survivor of a decedent who participated in a plan or
IRA should seek information from the plan administrator or the IRA
custodian. Survivors who desire information may download several relevant
publications, as well as forms, from the Internal Revenue Service at its
publications website:
http://www.irs.gov/formspubs/article/0,,id=99248,00.html ; or its general
website: http://www.irs.gov/ .
IRS Publications:
General Rules for Pensions and Annuities (IRS Publication 939):
http://www.irs.gov/pub/irs-pdf/p939.pdf .
Individual Retirement Arrangements (IRS Publication 590):
http://www.irs.gov/pub/irs-pdf/p590.pdf .
Pension and Annuity Income (IRS Publication 575):
http://www.irs.gov/pub/irs-pdf/p575.pdf .
Tax Guide to U.S. Civil Service Retirement Benefts (IRS Publication 721):
http://www.irs.gov/pub/irs-pdf/p721.pdf .
Tax-Sheltered Annuity Plans (403(B) Plans) (IRS Publication 571):
http://www.irs.gov/pub/irs-pdf/p571.pdf .
