there is no money in his estate in which to pay owed taxes. his surviving wife has full ownership upon death of his home, and is filing married filied separately. He has taxable income but paid no estimated taxes for 2011 that I can find. How do I prove there is no assets belonging to his estate in which to pay owed taxes?
The IRS is going to question that he had no assets since he lived in a home. It may assume that some things in the home were his assets. As for an insolvent estate, IRS and other US debts come first. As executor, if other debts were paid off first, you may be personally liable for any tax liability of the individual or the estate. It would be a good idea to talk to an estate planning or probate attorney to make sure you are not personally on the line.
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You put yourself in a tough position by becoming an executor of an insolvent estate. You would have been better off declining the role. You could be personally liable if you paid other debts before the taxes. Best bet now is to hire an estate attorney to represent you and unwind this situation for you.
Mr. Lively is a Certified Tax Specialist by the State Bar of California Board of Legal Specialization. He can be reached at 714-708-2593 or firstname.lastname@example.org.Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.
Are there any assets at all (like real estate interest, cars, personal property, etc.), not just cash? If there is any need for probate filing, you can institute an insolvency proceeding in probate court and serve the IRS and establish the fact in this manner. His surviving spouse, though, may not be completely off the hook. Even though the interest in the residence did not go through probate, a tax debt is a completely different breed of cat and attaches to property separately. Are you the court appointed executor? If so, it's your job to see that this issue is handled because the IRS can come after you if you allow assets to be disposed without first settling the tax debts. If no executor is appointed, then the person who inherits the assets or who is responsible for distribution of assets (like a trustee of a trust) is obligated to pay the taxes. She needs to meet with a CPA/tax accountant (not just a tax return preparer, but someone with a degree) and discuss the options available to her. Is a joint return an option? It might result in a lower tax, especially if your father passed away earlier in the year. You need professional tax advice ASAP. If necessary, extend the return to seek this guidance.
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