Probate & Trust Law Section Conference Manual ... - Minnesota CLE

I. HOW TO MAKE THE ELECTION
PORTABILITY SEMINAR
A. Time to Make Election. The election must be timely made as prescribed by law.
Code § 2010(c)(5)(A).
1. Made on Form 706. Code § 2010(c)(5)(A). See Part 6 of Form 706.
2. If an estate tax return is required. File in time “prescribed by law” which
for a timely filed 706 is 9 months after death, with possible 6 month
extension. Code § 6018/6075. “An estate that elects portability will be
considered, for purposes of Subtitle B and Subtitle F of the Internal
Revenue Code (Code), to be required to file a return under section
6018(a). Accordingly, the due date of an estate tax return required to elect
portability is 9 months after the decedent’s date of death or the last day of
the period covered by an extension (if an extension of time for filing has
been obtained). See §§ 20.6075–1 and 20.6081–1 for additional rules
relating to the time for filing estate tax returns.” Temp. Reg. § 20.2010-
2T(a)(1).
3. If an estate return is not required. If an estate tax return is not required to
be filed because the estate is less than the basic exclusion amount, to make
a timely filed portability election the regulations provide that the election
is as if an estate tax return is required to be filed. Temp. Reg. § 20.2010-
2T(a)(1). “Timely filing required. An estate that elects portability will be
considered, for purposes of Subtitle B and Subtitle F of the Internal
Revenue Code (Code), to be required to file a return under section
6018(a). Accordingly, the due date of an estate tax return required to elect
portability is 9 months after the decedent’s date of death or the last day of
the period covered by an extension (if an extension of time for filing has
been obtained). See §§ 20.6075–1 and 20.6081–1 for additional rules
relating to the time for filing estate tax returns.”
B. Opting out of the Election.
1. If the estate does not want to make the election, there are a couple of ways
to opt out.
a. Check the box on Form 706, Part 6, Section A.
b. A statement opting out is made in the return or attached to the
return. “Temp. Reg. § 20.2010-2T(a)(3)(i). The executor states
affirmatively on a timely-filed estate tax return, or in an attachment
to that estate tax return, that the estate is not electing portability
under section 2010(c)(5). The manner in which the executor may
make this affirmative statement on the estate tax return will be as
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