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. There is in fact no estate tax actually due unless the gross estate of the decedent is large enough to trigger a federal estate tax obligation. 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 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 subject to federal estate taxes and/or in cases where the property owner died before January 1, 1997.
For estates of property owners whose date of death is January 1, 1997 or later and whose gross estate does not necessitate a federal estate tax filing the process for releasing the estate tax lien has been greatly 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(Word, 28k) 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 federal 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 is $75.00 for recorded and registered land.
A death certificate should be recorded with the affidavit. Separate recording fees apply.
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.
William Francis Galvin, Secretary of the Commonwealth of Massachusetts