Can an executor accept a monetary gift from a beneficiary in lieu of commission?

Asked over 1 year ago - New Brunswick, NJ

My brother and I are 50-50 beneficiaries of my mother's estate. As executor, can I accept a monetary gift from my brother and reduce my commission--by mutual agreement--in order to avoid paying taxes on a larger commission amount? This would allow my brother to get more of the distribution, while I would be able to retain an amount equal to my share plus my taxed commission.

Attorney answers (3)

  1. Carl G. Archer

    Pro

    Contributor Level 12

    2

    Lawyers agree

    Answered . This almost sounds like tax evasion. Don't do that. If you don't want to take your commission, then don't - you'll get almost as much money and you won't pay income taxes on the commission. Usually the commission doesn't end up being a big chunk of the estate.

    If you and your brother want to smooth things out after closing the estate, then one can write the other one a check. Or buy the other a nice steak dinner or something. If you're going to claim a commission, you have to pay taxes on it. If you need to talk it through with an estates lawyer, it wouldn't take a long time for you and the lawyer to get on the same page.

    Good luck.

    This answer does not create an attorney-client relationship. In order for you to establish such a relationship,... more
  2. Steven M Zelinger

    Pro

    Contributor Level 20

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    Lawyers agree

    Answered . I agree with Mr. Archer that the implications are not worth the risk.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is... more
  3. James P. Frederick

    Contributor Level 20

    1

    Lawyer agrees

    Answered . I agree with my colleagues. If what you are contemplating is ever challenged by the IRS, they will overlook the form of the transactions and look to the substance. In substance, you are trying to evade taxes. If there were any non-tax reason for doing this, it might be defensible, or at least a little more so. An example would be where an estate has two assets, a house and some stock. One beneficiary wants the house, but the stock is worth more, so the other beneficiary agrees to chip in some money to even things up. In YOUR case, this is being done to offset your taxable compensation as executor. That would not pass muster, if this is challenged. You can decide for yourself whether the risk of it being challenged offsets the gain of the extra $$. As my colleague indicated, it is probably not worth it.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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