Blog Who Can Sign a Form 706, Federal Estate Tax Return

By Cowles Liipfert and Don Wells

Who signs Form 706, Federal Estate Tax Return?

If there is an administration of the Estate of a Decedent, the Personal Representative of the Decedent’s Estate is the proper party to sign the return.

Sometimes a Form 706 is filed to claim the portability of a deceased spouse’s unused exclusion (DSUE) even though the estate is not otherwise required to file such a return. The portability exclusion could enable the surviving spouse to claim the DSUE on his or her estate tax return, in addition to his or her own exclusion.

The estate tax exclusion is indexed for inflation each year and is now 13.61 million dollars and is scheduled to be indexed for inflation again in 2025, but is currently scheduled to reduced by 50% on January 1, 2026.

Sometimes it is prudent for a decedent’s estate to file a Form 706 for the sole purpose of preserving the DSUE amount, even if it may not be needed-just in case. For example, the surviving spouse may inherit property or may acquire employment-based benefits in his or her employer’s stock, worth many thousands of dollars.

Occasionally, it is not otherwise necessary to administer the estate of a deceased spouse, but to be safe, the spouse wants to file a Form 706, to preserve the DSU E of the deceased spouse.
Form 706 to preserve the DSUE of a deceased spouse may be filed by the “executor” of the decedent’s estate.

IRC Section 2203 states: “(t)he term ‘executor’ … means the executor or administrator of the decedent, or, if there is no executor or administrator appointed, qualified and acting within the United States, then any person in actual or constructive possession of any property of the decedent.”

The instructions to Form 706 provide a similar definition of an executor. For example, if no executor is appointed for a decedent’s estate, but the decedent’s assets have valid beneficiary designations naming the decedent’s surviving spouse, or if the decedent owned all assets in joint tenancy with the surviving spouse, the surviving spouse will be in actual or constructive possession of the decedent’s property. The surviving spouse would be therefore considered an “executor” for purposes of preparing and filing Form 706 and could make a portability election on a timely-filed Form 706 for the deceased spouse’s estate.

Consequently, it would not be necessary to have a personal representative appointed by the clerk of court, to file a Form 706 for the deceased spouse’s estate.