Legal Question in Wills and Trusts in New York

Probate Tax Election 6166 - what happens if not filed?

What action can heirs of Estate take against Attorney representing that Estate who failed to file (or advise to file), IRS Tax Election 6166?...Decedent passed 3+ years, intestate, Estate sizeable, close to $2Mil. There are 3 distributees, siblings/children of decedent. One heir named Admin. Estate Attorney, lethargic, unknowledgeable, uncaring, unfocused, never advised we file this document. Attorney recommended Accountant/friend, who we retained to prepare necessary IRS filings. Hasn't prepared anything, ever. Heirs sought advice from separate Tax Attorney, who suggested Malpractice against Estate Attorney for his failings, also said failure in filing the 6166 timely will result in substantial fines/penalties to Estate, reducing legacy, unnecessarily costing inheritence to be devalued. We need 2nd opinion to determine whether Estate Attorney culpable, and if feasible to pursue. Anyone experienced in this area of law please reply. We may retain your services as well, we are not just looking for free advice. Thank You


Asked on 8/07/02, 10:03 am

1 Answer from Attorneys
Walter LeVine Walter D. LeVine, Esq.

Re: Probate Tax Election 6166 - what happens if not filed?

Unquestionably the attorney has commited malpractice by failing to meet time deadlines for return and election filings. He may claim the negligence is attributable to the accountant, and a malpractice claim should be considered against the accountant also. In addition, the Administrator is culpable and consideration should be given to having him removed and surcharging him for any interest, penalties, etc. that might be assessed against the estate. I also suggest promptly hiring a reputable estate/tax attorney to get these documents filed as soon as possible, with a suggestion that a claim for hardship and good cause for abatement of penalties be made to IRS and anywhere else the returns/forms need to be filed.

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Answered on 8/07/02, 4:20 pm


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