Individual Advises Treasury of 'Widespread' Problem With Estate Portability Election

I am a member of the American College of Trust and Estate Counsel, and I was recently notified by one of my colleagues, Irv Schloss, concerning estates which did not file Form 706 on a timely basis, that the surviving spouse, therefore, will not be able to receive the benefits of the new portability election. I know of at least three estates in our office and a number of estates in the offices of colleagues with whom I have had discussions where a Form 706 was not filed, and it will be necessary to obtain Section 9100 relief. I have just filed for Section 9100 relief in one of my estates. I can assure you that this is a problem, especially in situations where almost all of the assets of a husband and wife are owned jointly and/or where the surviving spouse is the sole beneficiary of retirement plan benefits and insurance benefits. Advisors have informed the surviving spouse that a Form 706 need not be filed because the total gross estate of the decedent did not reach the $5 million benchmark. I think this problem is widespread. The portability election has solved a "problem" for the uninformed citizen, and I believe that it is reasonable that Section 9100 relief should be granted in these circumstances. Relief should be especially applicable where Sections 6075 and 6018(a)(1) of the Internal Revenue Code of 1986, as amended technically do not establish a due date for estate tax return where the decedent's gross estate does not reach the benchmark amount.

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