Date: June 9, 1999

Primary Author: Scott Beane, CPA

Question:

Does an estate have a right to be reimbursed for Federal Estate Taxes attributable to the portion of the gross taxable estate from trust sources (QTIP Trust for example) for which the executor can not control disbursement?

Answer:

In general the answer is yes, however, State Law and Will provisions play an important role.
For example: Assume that a QTIP Trust specifically prohibits the payment of such taxes from QTIP assets. In this case the following factors must be considered:

1. IRC section 2207A creates a right of reimbursement unless the Will directs otherwise. In general, the legislative history and annotations indicate that if neither the Will nor the trust contained language which is intended not to recover estate taxes then such taxes attributable to the trust(s) are reimbursable.

2. Is the estate insolvent as a result of the estate tax liability?

3. In the State of N.H. where I practice, the applicable Statute, RSA 88A:9, as well as the rest of this particular statute, appears to provide for apportionment of estate taxes, particularly for insolvent probate estate circumstances such as ours.

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