CCA 1036021: Surviving spouse's authority to sign Forms 2848 and 56

Plain-English summary

Chief Counsel advice addressed whether a surviving spouse could sign Form 2848 and Form 56 for a deceased spouse when the couple's assets were held in an inter vivos trust and no personal representative had been appointed. The advice states that the forms should be rejected unless authority exists under local law, but that the Service may accept them if the surviving spouse signs in the capacity of surviving spouse and trustee of the trust. It also applies the same conclusion when the assets are held in an inter vivos trust and the deceased spouse died intestate.

Ruling snapshot

• Question: May a surviving spouse sign Forms 2848 and 56 for a deceased spouse without appointment as personal representative?
• Outcome: Advice given
• Key authorities: Treas. Reg. § 601.503(d)(3)(iii) and (iv); IRM 21.3.7.9.8(5)

Full text (IRS public release)

ID: CCA_2010062814163457 Number: 201036021
Release Date: 9/10/2010
Office:
UILC: 9103.00-00

From: ------------------------
Sent: Monday, June 28, 2010 2:16:35 PM
To: ----------------------
Cc:
Subject: Form 2848 for a decedent

You asked about the ability of a surviving spouse to authorize the appointment of a representative on
Form 2848, Power of Attorney and Declaration of Representative, for years in which the spouses filed
joint tax returns. None of the years include the year of death. The spouses held all assets in a joint inter
vivos trust. The decedent’s will nominated the surviving spouse as the decedent’s personal
representative. Because all assets were held by the trust, no probate estate was established and no
court has appointed a personal representative for the estate. State law does not provide a surviving
spouse any powers traditionally vested in a personal representative.

The surviving spouse has submitted a Form 56, Notice Concerning Fiduciary Relationship, that names
himself as fiduciary. He signed Form 56 as “Executor/Personal Representative.” He has also submitted
a Form 2848 to appoint third parties as representatives. He signed Form 2848 in his individual capacity
and as “Executor/Personal Representative.”

Because the surviving spouse has not been appointed as the personal representative of the estate, Form
2848 and Form 56 should be rejected unless the surviving spouse or the purported representatives
provide authority under local law that a surviving spouse has relevant powers to act as a personal
representative.

Alternatively, in accordance with Treas. Reg. § 601.503(d)(3)(iii) and IRM 21.3.7.9.8(5), the Service can
accept Form 2848 signed by the surviving spouse in his own name and for his spouse if the surviving
spouse signs Form 2848 for his spouse as the surviving spouse and trustee of the inter vivos trust (the
only legatee). The surviving spouse should also sign Form 56 in the same fashion.

We reach the same conclusion for spouses holding assets in an inter vivos trust when one spouse dies
intestate. See Treas. Reg. § 601.503(d)(3)(iv).

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