Representation before the IRS · Representing a taxpayer in the collection process
Representing a decedent
tax year · reviewed 2026-08-18 · I. Ohu
Representing a decedent turns on a fact practitioners routinely miss: a power of attorney dies with the taxpayer. The person who can now act is a fiduciary, appointed under state law, whose authority comes from § 6903 rather than from Form 2848 — and who can become personally liable for the decedent’s federal tax by paying the wrong creditors first.
The rule
Who files. If an individual is deceased, the return required under § 6012(a) is made by the executor, administrator, or other person charged with the property of the decedent (IRC § 6012(b)(1)).
How a fiduciary steps into the taxpayer’s shoes. On notice to the Secretary that a person is acting in a fiduciary capacity, that fiduciary assumes the powers, rights, duties and privileges of the taxpayer in respect of tax — except that the tax is collected from the estate — until notice is given that the capacity has terminated (IRC § 6903(a)). Notice is given on Form 56, which also gives notice of qualification under § 6036.
A power of attorney does not survive. Form 2848 is an agency authorisation from a living principal. After death, a representative acts for the fiduciary, and a new Form 2848 signed by that fiduciary is what authorises them — filed alongside the Form 56 that establishes the fiduciary’s own standing.
Claiming the refund. Where a refund is due a deceased taxpayer, Form 1310 is filed by the person claiming it. A court-appointed personal representative attaching the court certificate is generally outside the requirement; a surviving relative claiming without appointment is not.
Personal liability for paying the wrong creditor first. This is the sharpest rule on the topic and it is not in the Internal Revenue Code. Under 31 U.S.C. § 3713(b), a representative of a person or estate who pays any part of a debt of the estate before paying a claim of the Government is personally liable, to the extent of that payment, for the Government’s unpaid claims. Section 3713(a) gives the Government’s claim priority where the estate of a deceased debtor in the custody of the executor is insufficient to pay all debts. An executor who distributes to beneficiaries, or settles ordinary creditors, ahead of a known federal tax liability pays it out of their own pocket.
Winding the duty up — two forms, two different effects.
- Form 4810, a request for prompt assessment under § 6501(d), shortens the assessment period to 18 months from the date the written request is received, in place of the ordinary 3 years; available for any return of the decedent or the estate except the estate tax returnTY2026. It must be filed separately from any other document, and it does not cover the estate tax return.
- Form 5495, a request for discharge from personal liability under § 2204 or § 6905, is filed after the relevant returns are filed. the IRS notifies the executor of the amount due within 9 months of the request; on payment, or if no notice issues in that period, the executor is discharged from personal liabilityTY2026 — but a request under § 6501(d) does not shorten the assessment period, and discharge from personal liability does not stop the IRS assessing deficiencies against the estate.
Transferee liability survives distribution. Section 6901 lets the IRS assess and collect from a transferee of property, and from a fiduciary liable under 31 U.S.C. § 3713(b), in the same manner and subject to the same provisions and limitations as the underlying tax. Distributing the estate does not put the assets beyond reach.
Current figures
| Item | Value |
|---|---|
| Prompt assessment under § 6501(d) | 18 months from the date the written request is received, in place of the ordinary 3 years; available for any return of the decedent or the estate except the estate tax returnTY2026 |
| Discharge from personal liability | the IRS notifies the executor of the amount due within 9 months of the request; on payment, or if no notice issues in that period, the executor is discharged from personal liabilityTY2026 |
How it works in practice
Check the authority before doing anything. A representative who holds a Form 2848 signed by a taxpayer who has since died holds nothing. The order is: the fiduciary establishes their own standing on Form 56, then signs a fresh Form 2848 appointing the representative. Working from the old authorisation produces disclosure refusals that look like IRS obstruction and are not.
The § 3713(b) exposure is the thing to raise first, and executors are rarely told. A family executor who pays the funeral home, the credit cards and a distribution to the children, then discovers an unpaid income tax liability, is personally on the hook to the extent of what they paid out. The advice is preventive and simple: identify the federal tax position before distributing anything. By the time the exposure is discovered it is usually irreversible.
The two wind-up forms are often confused, and they do opposite things. Form 4810 shortens the estate’s exposure — eighteen months instead of three years. Form 5495 protects the executor personally and does nothing to the assessment period. Pub. 559 says so in terms, and an executor who files one thinking they have the benefit of the other is unprotected in the direction they cared about.
Note what Form 4810 does not reach. Any return of the decedent or the estate except the estate tax return. An executor wanting finality on Form 706 is looking at § 2204, through Form 5495, not at § 6501(d).
The power of attorney that expired at death
An enrolled agent has held a Form 2848 for a client for six years. The client dies. The agent telephones the IRS to resolve an open balance and is refused disclosure.
Analysis. Correct refusal. The Form 2848 authority ended with the principal. The route is a Form 56 from the executor or administrator giving notice of the fiduciary relationship under § 6903, which vests the taxpayer's powers and rights in that fiduciary, and then a new Form 2848 signed by the fiduciary appointing the agent. Nothing about the underlying matter has changed; the chain of authority has.
The distribution that cost the executor personally
A son acts as executor of his mother's small estate. He pays the funeral costs and two credit card balances, then distributes the remaining $30,000 between himself and his sister. A year later the IRS assesses $19,000 of unpaid income tax for the decedent's final two years.
Analysis. Section 3713(b) makes him personally liable to the extent of the payments he made before satisfying the Government's claim, and § 3713(a) gives that claim priority where the estate is insufficient to pay all debts. Section 6901 lets the IRS assess him as a fiduciary in the same manner as the underlying tax, and the beneficiaries as transferees. Had the tax position been established before distribution, the estate would simply have paid it and he would have owed nothing personally.
The wrong form for the worry
An executor wants certainty before distributing. She is anxious about her own exposure and files Form 4810, expecting it to protect her.
Analysis. Wrong direction. Form 4810 requests prompt assessment under § 6501(d) and shortens the assessment period to 18 months — useful to the estate, but it does nothing for her personally. Personal discharge comes from Form 5495 under § 2204 or § 6905, filed after the returns are filed, on which the IRS has 9 months to state the amount due. Filing both is common and sensible; filing one for the other's purpose is not.
Traps
A power of attorney dies with the taxpayer. Form 56 first, then a fresh Form 2848 from the fiduciary.
Section 3713(b) is not in the Internal Revenue Code. It is Title 31, and it makes the representative personally liable for paying other debts first.
Form 4810 protects the estate; Form 5495 protects the executor. They are not interchangeable.
Form 4810 does not cover the estate tax return.
Discharge from personal liability does not stop assessment against the estate.
Distribution does not defeat collection. Section 6901 reaches transferees and fiduciaries alike.
How this has changed
The personal liability rule is the oldest thing on this page by a wide margin: 31 U.S.C. § 3713 descends from R.S. §§ 3466 and 3467, restated in 1934 and recodified into Title 31 by Pub. L. 97-258 in 1982. Its substance — Government claims first, and a representative who pays otherwise is liable to the extent of the payment — has not moved. What has changed around it is procedural: § 6905 and Form 5495 give an executor a route to certainty that the older law did not, and § 6501(d) gives the estate one. Neither existed when the priority rule was written, which is why the priority rule reads so unforgivingly on its own terms.
Exam focus
That a power of attorney terminates at death, and the Form 56 then Form 2848 sequence that replaces it. Section 6903’s effect — the fiduciary assumes the taxpayer’s powers and rights, but the tax is collected from the estate. The 31 U.S.C. § 3713(b) personal liability and what triggers it. The two wind-up forms and which protects whom: Form 4810 and § 6501(d)‘s eighteen months for the estate, Form 5495 and § 6905’s nine months for the executor. That Form 4810 excludes the estate tax return. Expect Form 1310 as a discrete fact.
Check yourself
1. A taxpayer dies. The enrolled agent’s existing Form 2848: (A) Continues in force for the estate (B) Terminates; the fiduciary files Form 56 and then signs a new Form 2848 (C) Transfers automatically to the executor (D) Continues for one year Answer: B.
2. Under 31 U.S.C. 3713(b), an executor who pays other creditors before a federal tax claim is: (A) Not liable, having acted in good faith (B) Personally liable to the extent of the payment for the Government’s unpaid claims (C) Liable only if the estate is solvent (D) Liable only for interest Answer: B.
3. A request for prompt assessment under IRC 6501(d) shortens the assessment period to: (A) 6 months (B) 18 months from receipt of the written request (C) 9 months (D) 2 years Answer: B, and it does not cover the estate tax return.
4. An executor wants to be discharged from personal liability for the decedent’s income and gift taxes. The form is: (A) Form 4810 (B) Form 5495 (C) Form 56 (D) Form 1310 Answer: B, under IRC § 2204 or § 6905, filed after the relevant returns are filed.
5. A surviving daughter, not court-appointed, claims her late father’s refund. She files: (A) Form 56 (B) Form 1310 (C) Form 2848 (D) Form 4810 Answer: B.
Change log
- Initial publication from IRC §§ 6012(b)(1), 6501(d), 6901, 6903, 6905, 31 U.S.C. § 3713(b) and IRS Pub. 559.