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, Staff 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 financial 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).
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20.
Claiming a decedent’s income-tax refund (Form 1310).
21.
Claiming benefits under a life-insurance policy.
22.
Survivor’s eligibility for either rollover or distribution from a decedent’s
qualified 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 staff, 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 benefit 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 offers 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 offer
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
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Persons (AARP) offers a summary of Preneed Funeral 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 Affairs:
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_PreNeed.htm.
•
Florida Attorney General:
http://myfloridalegal.com/pages.nsf/main/fe6c72fa035a16bc85256cc900514e6a!Open
Document.
•
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/;
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http://www.thefuneraldirectory.com/cremationfaq.html; and
http://www.cremationassociation.org/html/for_consumers.html.
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
first 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
Battlefields NMP - http://www.nps.gov/frsp/parkmgmt/lawsandpolicies.htm.
c. Burial at Sea.
The United States Navy Mortuary Affairs Department offers 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/.
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5.
HOW SOCIAL SECURITY CAN HELP WHEN A FAMILY MEMBER DIES.
Social Security should be notified 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 benefits if
the deceased person worked long enough under Social Security to qualify for benefits.
You should get in touch with Social Security as soon as you can to ensure the family
receives all of the benefits to which it may be entitled. Please read the following
information carefully to learn what benefits 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 benefits on the deceased's record. If there is no surviving spouse, the payment
is made to a child who is eligible for benefits on the deceased's record in the month of
death.
Monthly Benefits. Certain family members may be eligible to receive monthly benefits,
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
benefits, you must return the benefit received for the month of death or any later
months. For example, if the person dies in July, you must return the benefit paid
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in August. If benefits were paid by direct deposit, contact the bank or other
financial institution. Request that any funds received for the month of death or
later be returned to Social Security. If the benefits were paid by check, do not
cash any checks received for the month in which the person dies or later. Return
the checks to Social Security as soon as possible.
However, eligible family members may be able to receive death benefits for the month
in which the beneficiary 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 specific 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 confidentially 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 benefits
program is available at http://www.ssa.gov/pgm/links_survivor.htm.
ESSENTIAL INFORMATION AND DOCUMENTS NEEDED BY SURVIVOR.
6.
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.
•
Certified copies of the decedent’s death certificate.
•
Marriage certificates, if any; divorce decrees, if any.
•
Original life-insurance policies.
•
Decedent’s original last will.
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7.
•
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.
•
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) beneficiaries of decedent’s bank
accounts, and names of any transfer-on-death (TOD) beneficiaries 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 beneficiaries).
•
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 copartners.
•
Names and addresses of any persons with whom decedent engaged in any closelyheld 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.
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
Proof of death: [ ] Death certificate [ ] Obituary [ ] Other (specify)
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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 different
Name of any additional person seeking appointment
Day telephone Night telephone
Residence address
Mailing address, if different
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 filed for bankruptcy? [ ] yes [ ] no.
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Are you now, or have you ever been, an attorney at law in Virginia
or elsewhere? [ ] yes [ ] no.
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 nonprofit organization that provides information, emotional
support, and referrals to surviving friends and family members of homicide
victims.
•
Military.com: http://www.military.com/benefits/survivor-benefits/tragedyassistance-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:
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https://www.nationalresourcedirectory.org/nrd/public/DisplayPage.do?pare
ntFolderId=6645.
•
Survivors of Suicide: http://www.survivorsofsuicide.com/.
•
Suicide Survivor Support Group:
http://www.yellowribbon.org/SurvivorSupportGroups.html.
•
TAPS - Tragedy Assistance Programs for Survivors: http://www.taps.org/. A
national non-profit organization providing services to all those who have lost
a loved one on active duty with the Armed Forces. Offers 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/selfhelp/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
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estate or letters testamentary upon proof of a lost will in order to gain access to the safedeposit 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 modified and all
interested persons might need to be re-notified 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 affidavit 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 offer vacant dwelling insurance. Those that offer
it generally offer 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 offer it and the
conditions of coverage.
• Foremost Insurance Group - http://www.foremost.com/products/vacanthome/index.htm;
• Shelly, Middlebrooks O’Leary, Inc. - http://www.shellyins.com/vacant-dwellinginsurance.php;
• Southern Cross Underwriters http://www.universalspecialty.com/prod_vacant_dwellings.html;
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• Thum Insurance http://www.thuminsurance.com/content.aspx?sectionid=2&contentid=84.
14.
DECEDENT’S LAST WILL.
The decedent’s last will is a very significant document: it contains the decedent’s final
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 significant 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
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decedent’s devisees or heirs. The personal representative must also perform the
following duties:
•
Apply for an employer identification number (EIN) for the estate.
•
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 official 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 Identification Number (EIN). The first 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 file concerning the estate. You also must give the number to payers of interest
and dividends and other payers who must file 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 Identification 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 identification number of the person to whom the account is payable. After a
decedent’s death, the Forms 1099 must reflect the identification number of the estate or
beneficiary to whom the amounts are payable. The personal representative handling the
estate must furnish the this identification number to the payer.
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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 Identification Number and
Certification (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) identification number and
return it to the payer.
Insolvent Estate. A decedent’s estate might be insolvent, that is, it’s assets might be
insufficient to pay all the decedent’s debts. In that event, the debts due the United States
must be paid first. 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/irspdf/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.
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All persons interested or involved in a decedent’s estate should be aware of the federal
tax laws regarding the final 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 file the final income tax
return (Form 1040) of the decedent for the year of death and any returns not filed for
preceding years. A surviving spouse, under certain circumstances, may have to file 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 filed, the return for the year just closed will not be
the final return. The return for that year will be a regular return and the personal
representative must file it.
Joint Return. Generally, the personal representative and the surviving spouse can file a
joint return for the decedent and the surviving spouse. However, the surviving spouse
alone can file the joint return if no personal representative has been appointed before
the due date for filing the final joint return for the year of death. A surviving spouse
who files 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 filed, the widow(er) may be
eligible to claim the filing status of qualifying widow(er) with dependent child can
qualify to use the married-filing-jointly tax rates.
Surviving Spouse’s Remarriage. A final joint return with the decedent cannot be filed if
the surviving spouse remarried before the end of the year of the decedent’s death. The
filing status of the decedent in this instance is married filing 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 final
distribution of its assets to the heirs and other beneficiaries. The income earned by the
assets during this period must be reported to the IRS by the estate under the conditions
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described in IRS Publication 559. The tax generally is figured 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 fiscal year basis. The personal
representative chooses the estate’s accounting period when filing its first Form 1041.
The estate’s first 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 file a Form 1041. If one or more of the beneficiaries of the domestic
estate are nonresident alien individuals, the personal representative must file 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/irspdf/p559.pdf.
20.
CLAIMING A DECEDENT’S INCOME-TAX REFUND (Form 1310).
A return should be filed 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
filed. Also, the decedent may be entitled to other credits that result in a refund.
Generally, a person who is filing a return for a decedent and claiming a refund must file
Form 1310 with the return. However, if the person claiming the refund is a surviving
spouse filing a joint return with the defendant, or a court-appointed or certified
personal representative filing an original return for the decedent, Form 1310 is not
needed. The personal representative must attach to the return a copy of the court
certificate 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 Benefits. For information on how to claim death benefits 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/lifilehow.html.
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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 beneficiary 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.
VA Policies. To file a claim for benefits 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 qualified
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 Benefits (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.
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