2006 Delaware Code - CHAPTER 15 — ESTATE TAX

§ 1501. Definitions relating to this chapter.

As used in this chapter,

(1) "Estate tax" shall mean the tax imposed under this chapter.

(2) "Federal estate tax" shall mean the tax imposed under the United States Internal Revenue Code (26 U.S.C. § 2001 et seq.), as amended.

(3) "Personal representative" shall mean any executor or administrator of the decedent and, with respect to property which is included in the gross estate for federal estate tax purposes and which is not in the possession or control of the personal representative, any person in possession of such property.

(4) "State," except where the context otherwise indicates, shall mean this State or any other state of the United States or the District of Columbia. (71 Del. Laws, c. 353, § 18.)

§ 1502. Tax on transfers of resident estates.

(a) Imposition of tax-- A tax is imposed upon the transfer of the property of every decedent who was a resident of this State at the time of death.

(b) Amount of tax-- Except as provided in § 1503 of this title, the amount of the tax shall be the amount of credit allowable under the provisions of the federal estate tax laws for estate, inheritance, legacy and succession taxes paid to any state. (71 Del. Laws, c. 353, § 19.)

§ 1503. Credit for taxes paid to another state; limitation.

(a) The estate of every decedent who was a resident of this State at the time of death shall be allowed a credit against the tax otherwise due under this chapter for the aggregate amount of all estate, inheritance, legacy and succession taxes actually paid to any other state in respect to any property owned by such decedent or subject to such taxes as part of or in connection with the estate and for which a credit for such taxes paid to any other state is allowable under the federal estate tax laws.

(b) The credit allowed under this section for taxes paid to any other state shall be limited to that amount which does not reduce the tax due under this chapter to an amount less than the credit allowable under the provisions of the federal estate tax laws for estate, inheritance, legacy and succession taxes paid to any state multiplied by a fraction:

(1) The numerator of which is the value of that part of the decedent's taxable estate for federal estate tax purposes consisting of real and tangible personal property located in this State plus all intangible personal property, and

(2) The denominator of which is the value of the decedent's taxable estate for federal estate tax purposes, excluding real and tangible personal property not located in any state. (71 Del. Laws, c. 353, § 20; 72 Del. Laws, c. 104, § 6.)

§ 1504. Tax on transfers of nonresident estates.

(a) Imposition of tax-- A tax is imposed upon the transfer of the estate of every decedent who at the time of death was a nonresident of this State of that part of the property which is taxable for federal estate tax purposes and which consists of real and tangible personal property situated in this State.

(b) Amount of tax-- The amount of the tax shall be computed by multiplying the credit allowable under the provisions of the federal estate tax laws for estate, inheritance, legacy and succession taxes paid to any state by a fraction,

(1) The numerator of which is the value of that part of the decedent's taxable estate for federal estate tax purposes consisting of real and tangible personal property located in this State, and

(2) The denominator of which is the value of the decedent's taxable estate for federal estate tax purposes, excluding real and tangible personal property not located in any state. (71 Del. Laws, c. 353, § 21.)

§ 1505. Returns; time to file return and pay tax.

(a) Duty to file return. -- An estate tax return shall be filed pursuant to this chapter in all cases when:

(1) A resident decedent or a nonresident decedent having real or tangible personal property situated in this State is required to file a federal estate tax return; and

(2) The federal estate tax laws allow a credit for state death taxes paid for estates of decedents dying on the date of death of such resident and nonresident decedent, regardless of whether a credit is allowed on the federal estate tax return of such resident or nonresident decedent.

(b) Time to file return -- The estate tax returns required by this chapter shall be filed on or before the due date for the federal estate tax return (with regard to extensions).

(c) Time and place for payment of tax-- The personal representative shall, without assessment, notice or demand, pay any tax due thereon to the Division of Revenue on or before the date fixed for filing the return. The Director of Revenue shall prescribe the place for filing any return, declaration, statement or other document required pursuant to this chapter and for the payment of any tax. (71 Del. Laws, c. 353, § 22; 75 Del. Laws, c. 198, § 1.)

§ 1506. Collection and payment of tax out of estate; liability of the personal representative.

(a) The personal representative shall pay to the Department of Finance the full amount of the Delaware estate tax when the same is due, out of any moneys belonging to such estate in the personal representative's hands.

(b) The personal representative shall have the same powers and duties in respect to the raising of funds for the payment of such tax as conferred upon an executor under §§ 2205, 2206, 2207A and 2207B of the Internal Revenue Code, and pursuant to the laws of this State in the case of raising funds for the payment of a decedent's debts generally. Any provision in a decedent's will (or revocable trust) in which a decedent effectively waives a right of recovery under a section of the Internal Revenue Code referred to in the preceding sentence shall be deemed a waiver of the corresponding right of recovery under this section, unless the will or revocable trust specifically states otherwise.

(c) Every personal representative of a decedent's estate or any part thereof which is taxable under this chapter is personally liable for the payment of the estate tax. In addition to personal liability for payment of the estate tax, any personal representative failing to perform the duties under this chapter shall forfeit any right to commissions for settling the estate of the decedent. (71 Del. Laws, c. 353, § 23; 70 Del. Laws, c. 186, § 1.)

§ 1507. Assessment of tax; special lien for estate taxes.

(a) Assessment. -- Notwithstanding the provisions of § 530 of this title, the tax due pursuant to this chapter shall be deemed assessed on the date of filing the Delaware estate tax return or the due date of the federal estate tax return for the decedent, whichever is earlier.

(b) Special lien for estate taxes. -- The tax imposed by this chapter shall be a special lien upon the gross estate of a resident decedent and upon the real and tangible personal property of a nonresident decedent situated in this State at the time of the decedent's death for 10 years from the date of death. Any property for which a marital or charitable deduction was allowed for federal estate tax purposes shall be exempt from the lien provided by this subsection.

(c) Extinction of lien -- Notwithstanding the foregoing, the special lien shall be extinguished:

(1) Pursuant to § 555 of this title as to such part of the gross estate sold for the payment of charges against the estate and expenses of its administration,

(2) Upon filing with the Register of Wills of the county in which the decedent resided and in which the decedent owned real property of 1 of the 2 following certificates:

a. Of the Director or Revenue that the estate tax return has been filed and the correct tax has been paid, pursuant to § 2304(a) of Title 12, or

b. That no estate tax return or tax was due, pursuant to § 2304(b) of Title 12.

(d) Notwithstanding the preceding subsection (b) of this section, there shall be no special lien upon the gross estate of a resident decedent and upon the real and tangible personal property of a nonresident decedent who dies on a date on which the federal estate tax does not allow a credit for state death taxes paid. (71 Del. Laws, c. 353, § 25; 75 Del. Laws, c. 198, § 2.)

§ 1508. Final settlement of executor's or administrator's accounts.

Repealed by 71 Del. Laws, c. 353, § 24, eff. Jan. 1, 1999.

§§ 1509, 1510. Refund of taxes erroneously paid; procedure and administration.

Repealed by 68 Del. Laws, c. 187, § 11, eff. Aug. 9, 1991.