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

set forth in the instructions issued with respect to such form
(‘‘Instructions for Form 706’’).” This is accomplished by the
check-the-box provision on the current Form 706.
c. Don’t file a Form 706. Temp. Reg. § 20.2010-2T(a)(3)(ii),
2T(a)(1). You can simply fail to file a Form 706 and thereby make
no election.
C. Irrevocability. Elections, once made and after the filing period passes, are
irrevocable. Code § 2010(c)(5)(A). Temp. Reg. § 20.2010-2T(a)(4).
D. Amending the Election.
1. It appears that the Temporary Regulations contemplate that elections may
need to be amended.
2. Temp. Reg. § 20.2010-3T(c)(1)(ii) contemplates amended or corrected
DSUE amounts applicable for surviving spouses, and
3. Temp. Reg. § 20.2010-3T(d) contemplates that the IRS may change the
DSUE amount upon audit.
E. Who Makes the Election?
1. Executors. An appointed executor, recognized under state law, (Code §
2203) may file a Form 706 and make the portability election. Temp. Reg.
§ 20.2010-2T(a)(6)(i).
2. Non-Appointed Executors. “If there is no appointed executor, any person
in actual or constructive possession of any property of the decedent (a
non- appointed executor) may file the estate tax return on behalf of the
estate of the decedent and, in so doing, elect portability of the decedent’s
DSUE amount…” Temp. Reg. § 20.2010-2T(a)(6)(ii).
F. Requirements for a Form 706.
1. The Form 706 must be complete and properly prepared. Temp. Reg. §
20.2010-2T(a)(2). Also See Section C, Part 6 of Form 706.
2. “An estate tax return will be considered complete and properly- prepared
for purposes of this section if it is prepared in accordance with the
instructions issued for the estate tax return (Instructions for Form 706) and
if the requirements of §§ 20.6018–2, 20.6018–3, and 20.6018–4 are
satisfied.” Temp. Reg. § 20.2010-2T(a)(7)(i).
3. If no federal Form 706 is required except to make a portability election,
the filing requirements may be lessened but only for very limited
circumstances described below. Temp. Reg. § 20.2010-2T(a)(7)(ii). With
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