Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Estate of Turco: Is There Clawback For Insufficient Estate Tax Funds?

Author: James F. McDonough

Date: August 15, 2013

Key Contacts

Back

The lack of liquidity is a serious problem in the administration of an Estate, especially for a fiduciary with the potential for personal liability. The lack of liquidity can arise from no planning, illiquid assets or an unforeseen change in circumstances or market conditions. Federal estate tax is due nine months after death; however, it may not be possible to sell assets within that period. The dramatic decline in market values after death or the valuation date creates severe problems as seen below.

The New Jersey case, Estate of Turco, illustrates how adverse market conditions can harm an estate. The decedent died in March 2005 (or six months later with alternate valuation) and the appraisals of the estate produced a $30,000,000 gross estate for federal tax purposes. You may recall the tightening of the credit markets in 2007, followed by the collapse of Lehman Brothers in 2008. The estate is obligated to pay an estate tax calculated on asset values that could not be realized in the current marketplace.

There are two other important facts to note. First, there was $4.5m of life insurance that was paid to trusts for the decedent’s grandchildren, who were designated as the primary beneficiaries of the proceeds. Second, the Will required that all taxes were to be paid from the residuary estate.

The court declared the estate insolvent at the administrator’s request. The administrator requested that he be authorized to clawback funds from the non-probate assets and specific bequests. The Court held that it was too soon to consider clawback and instructed the administrator to seek a compromise with the IRS before requesting such authority.

The court’s opinion noted that the administrator did not have the statutory power under federal or state law to recover taxes from non-probate assets, especially where there is a specific clause in the Will instructing on the source of funds for payment of taxes.

The nightmare for advisors is the rapid decline in asset values without the corresponding liquidity. One must remember the grandchildren’s trust received life insurance proceeds which are non-probate assets. Clearly the grandchildren are better off having been named as primary beneficiaries of the policies and receiving the proceeds directly rather than through the estate.  This group also benefits from the absence of statutory authority that would permit the fiduciary from pursuing non-probate assets.

Whether the IRS will refuse to compromise the tax bill and whether it will push the administrator to clawback funds from the trusts will be the next installment.  The government has its own statutory authority to collect taxes from transferees, which the court did not address.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Zoning Laws Explained: What You Need to Know Before Buying Property post image

Zoning Laws Explained: What You Need to Know Before Buying Property

Before buying property, it is critical to determine whether local zoning laws may affect your plans. If you plan to redevelop the property, you will want to confirm that local zoning regulations permit development as intended. If acquiring property that is already developed, you must verify that the use is permitted in the underlying zoning […]

Author: Wendy Rubinstein Quiroga

Link to post with title - "Zoning Laws Explained: What You Need to Know Before Buying Property"
Special Needs Trusts in New Jersey: Planning for Your Loved One’s Future post image

Special Needs Trusts in New Jersey: Planning for Your Loved One’s Future

For parents of a child with a disability, estate planning raises concerns that go well beyond deciding who will inherit their assets. Parents may spend years making sure their child has the right care, services, and support. Eventually, they must also confront a difficult question: Who will take over when they can no longer do […]

Author: George McGowan

Link to post with title - "Special Needs Trusts in New Jersey: Planning for Your Loved One’s Future"
What Every Real Estate Investor Should Know Before Buying a Rental Property post image

What Every Real Estate Investor Should Know Before Buying a Rental Property

Before buying a New Jersey rental property, an investor should verify realistic operating numbers, the property’s legal and regulatory status, lead-based paint and flood compliance, the existing leases and tenant protections, and the right ownership structure. A rental property is more than a piece of real estate; it is an operating business subject to legal, […]

Author: Donald M. Pepe

Link to post with title - "What Every Real Estate Investor Should Know Before Buying a Rental Property"
Can You Change an Irrevocable Trust in New Jersey? post image

Can You Change an Irrevocable Trust in New Jersey?

In New Jersey, an irrevocable trust can sometimes be modified even though its name suggests otherwise, and one of the primary tools for doing so is a process called decanting. Whether decanting is available depends on the specific terms of the trust and the discretion given to the trustee. Key takeaways: New Jersey has no […]

Author: Marc J. Comer

Link to post with title - "Can You Change an Irrevocable Trust in New Jersey?"
How Intellectual Property Valuation Will Impact Business Transactions post image

How Intellectual Property Valuation Will Impact Business Transactions

Intellectual property valuation determines the monetary value of a business’s IP assets, and it drives outcomes in licensing deals, joint ventures, mergers and acquisitions, financing, and ownership disputes. The most valuable assets of a business are often the things that cannot be seen or touched: a proprietary process, a copyrighted work, brand recognition, or the […]

Author: Jay McDaniel

Link to post with title - "How Intellectual Property Valuation Will Impact Business Transactions"
Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls post image

Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls

For New Jersey data center owners and operators, a service agreement may look routine when it is signed. The network is functioning, the vendor is meeting its installation schedule, and the parties have agreed on pricing and performance specifications. The provisions that seem most important at that stage are often the technical ones. That changes […]

Author: George McGowan

Link to post with title - "Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!