Releasing Estate Tax Liens
Real property in Massachusetts, including time-shares, is subject to a lien for estate taxes upon the death of anyone who has a legal interest in the property. The lien applies even if the property was owned under a joint tenancy or as husband and wife. The fact that there was no will or probate involved with the estate does not change the fact that the lien still applies to the decedent’s interest in the property. For most estates, there is in fact no estate tax actually due, however, until a release of estate tax lien form is filed with the Registry of Deeds there is a cloud on the title for the ten years following the death of the property owner. The standard method of obtaining a release of estate tax lien is to file an estate tax return with the Massachusetts Department of Revenue (DOR) and obtain from the DOR a Release of Estate Tax Lien, known as an M-792 certificate. This is the required method when dealing with estates that are worth $1,000,000 or more.
For estates of property owners valued at LESS than $1,000,000 the process for releasing the estate tax lien is simplified. Chapter 147 of the Acts of 1998 eliminates the requirement of obtaining an M-792 certificate in order to confirm that no estate tax is due when the estate falls within the above mentioned parameters. The estate lien may now be released by an Affidavit filed under M.G.L. c. 65C, s. 14(a).
The affidavit should be filed by an executor, administrator or, if there is no executor or administrator appointed, qualified and acting within the Commonwealth, then by any person in actual or constructive possession of any property of the decedent. For example, a surviving spouse may file an affidavit where there has been no probate. The affidavit should state the following:
- The full name and date of death of the decedent.
- The title reference of the decedents property.
- That the gross estate of the decedent does not necessitate a Massachusetts estate tax filing.*
- State that it is filed under the pains and penalties of perjury.
- State the identity and title of the person signing the affidavit. Title would be executor, administrator, spouse, surviving joint tenant or remainderman after a life estate.
- The affiant’s signature needs to be acknowledged by a notary public.
- The recording fee for an affidavit is $105.00 for recorded land and $105.00 for registered land.
- A death certificate should be recorded with the affidavit. Separate recording fees ($105.00) apply for the death certificate.
- A self-addressed stamped envelope should be included with recordings submitted via mail or courier.
*The gross estate value that triggers an estate tax obligation can change every year and after 2002 does not mirror the federal values. Contact the Massachusetts Department of Revenue or your attorney to determine if the estate in question is subject to the tax.
REGISTRY PERSONNEL CANNOT PREPARE THIS AFFIDAVIT FOR YOU.
IF YOU HAVE QUESTIONS ABOUT THIS PROCESS CONSULT AN ATTORNEY.
THIS IS NOT A LEGAL OPINION. IT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.