Transfer Taxes Flashcards
(33 cards)
What do the terms “testate” and “intestate” mean?
A person who dies with a valid will has died testate, while a decedent without one has died intestate
Testator = person who made the will
When is a will valid?
If (1) the testator has legal capacity and (2) the will is signed by the testator and by witnesses, all in the presence of one another
What is a legacy and a devise?
Legacy = gift of personal property through a will
Devise = gift of real property through a will
Both of these can be specific or general (e.g. a certain amount of cash or land, rather than a specific item or location)
How are a decedent’s assets distributed if he dies intestate?
According to state law, which varies but has a lot of commonality
What are usually the rights of a decedent’s spouse?
If the decedent is intestate, the spouse receives a particular % of the estate, usually 50%
Even if he is testate, the spouse can elect to receive a particular %, though this is usually smaller (often 33%)
What is the usual order of distribution for an estate after the decedent’s spouse?
(1) descendants, (2) ancestors/ascendants, and (3) collaterals
(3) includes siblings
How do per capita and per stirpes distributions of property differ?
Per capita = all heirs receive an equal share of the estate
Per stirpes = all heirs in the closest relationship (usually children) receive an equal share, and if any of them are deceased, their descendants receive an equal share of what they would have received
What is an example of a per capita distribution?
A decedent has three children, X, Y, and Z. X has two children, A and B, and Y has a child C. Otherwise, the decedent has no other descendants.
Since there are 7 total descendants here, each would receive 1/7 of the estate. If one of them were deceased, then each would receive 1/6 (and so on)
What is an example of a per stirpes distribution?
A decedent has three children, X, Y, and Z. X has two children, A and B, and Y has a child C. Otherwise, the decedent has no other descendants.
X, Y, and Z would each receive 1/3 of the estate. If X were deceased, however, Y and Z would still receive 1/3, but A and B would each receive 1/6. Similarly, if X and Z were alive but Y were deceased, then A and B would get nothing while C would get 1/3 in place of his parent.
Which court oversees estate matters?
Probate court
Ensuring a will is valid = “probating” that will
Who carries out the administration of an estate?
Either the executor (if testate), as nominated in the will, or administrator (if intestate), as nominated by the court
This is because the executor executes the terms of the will, rather than “administering” the estate according to general laws
What are the rights and duties of an executor or administrator?
Rights = can enter into contracts for estate, employ professionals (e.g. appraisers), and sell assets
Duties = must exercise due diligence (will be held liable for harms resulting from negligence)
What is the general procedure for the administration of a decedent’s estate?
(1) collect assets, file these with the court
(2) publish a notice for all claims against the estate to be filed with the court
(3) pay off debts
(4) file a final accounting of the administration
(5) executor/administrator is discharged
What is abatement and ademption?
Abatement = deciding how to distribute assets when they are, in total, not enough to satisfy all claims
Ademption = when a specific bequest becomes impossible given the circumstances
What are the two different kinds of transfer taxes?
Estate tax (if giver is dead)
Gift tax (if giver is alive)
What is the full calculation of the estate tax?
Gross estate - nondiscretionary deductions = adjusted gross estate - discretionary deductions = taxable estate \+ adjusted taxable gifts = tentative tax base x uniform tax rate = tentative estate tax - gift taxes payable = gross estate tax - credits = estate tax due
How is the value of the gross estate determined?
It is by default the value of the estate when the decedent died, but one can elect a date six months into the future – the alternative valuation date (AVD) – if the estate’s value will be smaller (and so a smaller tax will be owed)
However, any property transferred before the AVD must be measured at that date
Besides what is actually owned by the decedent, what is included in the gross estate?
(1) whatever is constructively owned by the decedent (e.g. gifts given to others over which he had control)
(2) certain gifts made three years prior to death or earlier, e.g. life insurance
(3) one-half the FV of community property (e.g. a home shared with a spouse)
What are some examples of nondiscretionary deductions?
(1) administration expenses (though these cannot also be deducted for the decedent’s final income tax)
(2) funeral expenses
(3) losses from casualty and theft
(4) claims against the estate, including debt on property (e.g. mortgages)
(5) various taxes, though not post-death income taxes
What are discretionary deductions?
(1) charitable contributions (if specifically ordered by the will)
(2) marital deduction – deducts all property given to spouse, but applies only if there is a non-terminable interest in the property given
What is a non-terminable interest?
Ownership of the property that is not subject to end after a given amount of time or after a given event occurs (e.g. a spouse’s remarriage)
What are adjusted taxable gifts?
Gifts given within the year above the annual deductible threshold ($14,000 for 2013) – but does not include any gifts already included in the gross estate
What is included in gift taxes payable?
These apply to all gifts made after 1976 for which taxes have not yet been paid (and doesn’t include any of the adjusted taxable gifts)
Which credits are applicable against the gross estate tax?
The unified tax credit, as well as various miscellaneous credits
Unified tax credit = huge credit applicable to the sum of taxable gifts and (taxable) estate assets – because gifts and estate are linked, it is a “unified” credit
