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The representative distributes the estate assets according to the decree, pays his commission, settles any other expenses allowed in the decree, closes his books, presents his vouchers to the court, and asks for a discharge from his responsibilities and for the cancellation of his bond (xxvi) Funding of Trusts It is not uncommon for part of the estate to be distributed to a testamentary trust or to a preexisting inter vivos trust The distribution to the trust may make up part of a marital, residuary, or charitable bequest A testamentary trust may also be funded to hold assets for a minor bene ciary The appointment and approval of the trustee(s), and the distribution of the estate assets to the trust would be included in the courts decree described above (j) POWERS OF ESTATE REPRESENTATIVE (i) Executor versus Administrator The personal representative s powers, as distinguished from duties, are those acts that he is authorized, rather than required, to perform As previously mentioned, the powers of an executor or administrator CTA are outlined in the will and are often broader than those allowed to an administrator of an intestate, who must look solely to statutory authority The most common statutory and will clause powers of the personal representative are to invest and reinvest estate assets, to collect income and manage the estate property, to sell estate property as he sees t, to mortgage property (in some states), and to deliver and execute agreements, contracts, deeds, and other instruments necessary to administer the estate Most properly drawn wills reproduce the statutory powers and add additional desired powers not granted by statute (ii) Will Powers Not Conferred by Statute Using New York State law as outlined by Harris as an example, the powers listed below, when included in a will of a New York decedent, would grant additional powers not conferred by statute2 These 10 powers would not be available to an executor unless enumerated in the will (and are never available to an administrator of an intestate): 1 To distribute the estate immediately after death Many states require the executor to delay any distribution for as much as one year after letters testamentary are issued 2 To hold property without regard to the limitations imposed by law on the proper investment of estate assets 3 To make extraordinary repairs to estate assets New York allows the representative to make only ordinary repairs ; he has to secure the permission of all bene ciaries and possibly of the court to make extraordinary repairs such as replacing a heating system on real estate administered by the estate 4 To charge the cost of agents such as attorneys, accountants, and investment advisors as estate expenses 5 To continue a business of decedent 6 To keep funds uninvested or invested in nonincome-producing assets 7 To abandon, alter, or demolish real estate 8 To borrow on behalf of the estate and give notes or bonds for the sums borrowed, and to pledge or mortgage any property as security for the borrowing 9 To pay all necessary or proper expenses and charges from income or principal, or partly from each as the duciary deems advisable (This important power will be expanded on in the discussion of income and principal of trusts) 10 To do all acts not speci cally mentioned as if the duciary were the absolute owner of the property
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2 Homer I Harris, Estates Practice Guide, Fourth Edition (Lawyer s Co-Operative Publishing, Rochester, NY, 1984), Nov 1994 Suppl
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(iii) Will Powers versus Statutory Powers It is important to remember that state law is looked to only where the will is silent Any will provision will be adhered to, even if it is broader or more restrictive than statutory powers, unless such provision is contrary to law or public policy (k) COMMISSIONS OF REPRESENTATIVES Many states make executors and administrators commissions statutory However, with an executor, the rst step is to look to the will Testators may speci cally provide the amount of commission or prohibit commissions for duciaries These will provisions will be adhered to, although several states allow an executor to renounce the will provisions and receive statutory commissions Other states force the executor to renounce the appointment and petition to be appointed administrator, thereby becoming eligible for the statutory commissions of an administrator Some states do not have statutory commission rates, leaving the awarding of commissions to the court s discretion It is important to bear in mind that commissions are allowed only on the probate assets, that is, assets that come under the administration of the personal representative As previously mentioned, real property does not generally come under the control of the representative and thus is not usually a probate asset When real property is a probate asset, the representative is entitled to commissions In several states, speci c bequests and the income thereon are treated as nonprobate and thus noncommissionable assets In addition, if an asset is secured by a liability, only the net equity should enter into the commission base Sometimes a will provides for more than one executor State law must then be examined to determine whether each is entitled to statutory commission or whether one such commission must be shared (l) TAXATION OF ESTATES (i) Final Individual Income Taxes One of the responsibilities of the personal representative is to le any un led federal and state income tax returns, as well as nal income tax returns for the short taxable year that ends on the date of death of the decedent If the deceased left a surviving spouse, the personal representative can elect to le a joint federal tax return for the year of death A joint return will normally be prepared on the cash basis for the calendar year, including the decedent s income only through the date of death, and the income of the surviving spouse for the full calendar year An election in the nal return to accrue medical expenses unpaid at death that are paid within one year of death may be made Accrued interest on US Government Series E Bonds owned by the decedent may be included as income in the nal federal income tax return Expert tax advice should be secured by the representative before making these or various other available elections Unused capital loss carryforwards and unused charitable contribution carryforwards of decedent are no longer deductible after the nal year Unused passive activity losses are allowed on the nal return to the extent they exceed the estate tax value over the decedent s adjusted basis If a joint return is being led, the tax shown on the return must be allocated between the decedent and the surviving spouse The allocation will take into account the decedent s withholding tax and his actual payments of estimated tax, leaving the estate of the decedent with either an asset (representing overpayment of taxes) or a liability (representing underpayment of taxes) If the surviving spouse had income or paid some portion of the tax, she would owe the estate or be entitled to reimbursement from it, depending on the relationship of her tax payments to the separate tax liability on her income (ii) Federal Estate Tax Decedents with gross estates valued at over $1 million3 are required to le a Federal Estate Tax Return, Form 706, regardless of the fact that there may be no federal
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This is the ling threshold effective for decedents dying on or after January 1, 2002 This threshold is scheduled to increase as follows: in 2004, increases to $15 million; in 2006, increases to $2 million; in 2009, increases to $3,500,000; in 2010 the estate tax is repealed, hence no ling requirement; in 2011, the estate repeal sunsets and the pre-2002 rules become effective once again, hence the ling threshold is reduced to $675,000 [see Internal Revenue Service Publication 950 (Rev March 2002), Introduction to Estate and Gift Taxes ] See discussion of these changes made by EGTRRA later
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