Article 2 - Proration

California Probate Code — §§ 20110-20117

Sections (9)

§ 20110

Enacted by Stats. 1990, Ch. 79.

(a)Except as provided in subdivision (b), any estate tax shall be equitably prorated among the persons interested in the estate in the manner prescribed in this article.

(b)This section does not apply:

(1)To the extent the decedent in a written inter vivos or testamentary instrument disposing of property specifically directs that the property be applied to the satisfaction of an estate tax or that an estate tax be prorated to the property in the manner provided in the instrument. As used in this paragraph, an “instrument disposing of property” includes an instrument that creates an interest in property or an amendment to an instrument that disposes of property or creates an interest in property.

(2)Where federal law directs otherwise. If federal law directs the manner of proration of the federal estate tax, the California estate tax shall be prorated in the same manner.

§ 20111

Enacted by Stats. 1990, Ch. 79.

The proration required by this article shall be made in the proportion that the value of the property received by each person interested in the estate bears to the total value of all property received by all persons interested in the estate, subject to the provisions of this article.

§ 20112

Enacted by Stats. 1990, Ch. 79.

(a)In making a proration of the federal estate tax, allowances shall be made for credits allowed for state or foreign death taxes in determining the federal tax payable and for exemptions and deductions allowed for the purpose of determining the taxable estate.

(b)In making a proration of the California estate tax, allowances shall be made for (1) credits (other than the credit for state death taxes paid) allowed by the federal estate tax law and attributable to property located in this state, and (2) exemptions and deductions allowed by the federal estate tax law for the purpose of determining the taxable estate attributable to property located in this state.

(c)In making a proration of an estate tax, interest on extension of taxes and interest and penalties on any deficiency shall be charged to equitably reflect the benefits and burdens of the extension or deficiency and of any tax deductions associated with the interest and penalties.

§ 20113

Enacted by Stats. 1990, Ch. 79.

If a trust is created, or other provision made whereby a person is given an interest in the income of, an estate for years or for life in, or other temporary interest in, any property, the estate tax on both the temporary interest and on the remainder thereafter shall be charged against and paid out of the corpus of the property without apportionment between remainders and temporary estates.

§ 20114

Enacted by Stats. 1990, Ch. 79.

(a)As used in this section, “qualified real property” means qualified real property as defined in Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A).

(b)If an election is made pursuant to Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A), the proration shall be based upon the amount of federal estate tax that would be payable but for the election. The amount of the reduction in federal estate tax resulting from an election pursuant to Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A) shall reduce the tax that is otherwise attributable to the qualified real property that is the subject of the election. If the tax that is otherwise attributable to the qualified real property is reduced to zero pursuant to this subdivision, any excess amount of reduction shall reduce the tax otherwise payable with respect to the other property, this amount to be equitably prorated in accordance with Section 20111.

(c)If additional federal estate tax is imposed under subsection (c) of Section 2032A of the Internal Revenue Code (26 U.S.C. Sec. 2032A) by reason of early disposition or cessation of qualified use, the additional tax shall be a charge against the portion of the qualified real property to which the additional tax is attributable, and shall be equitably prorated among the persons interested in that portion of the qualified real property in proportion to their interests.

§ 20114.5

Amended by Stats. 2004, Ch. 183, Sec. 281. Effective January 1, 2005.

(a)As used in this section:

(1)A reference to Section 4980A of the Internal Revenue Code means Section 4980A of the federal Internal Revenue Code of 1986 as amended (26 U.S.C. Sec. 4980A) and also means former Section 4981A of the federal Internal Revenue Code of 1986.

(2)“Excess retirement accumulation” has the meaning given it in paragraph (3) of subsection (d) of Section 4980A.

(b)If the federal estate tax is increased under subsection (d) of Section 4980A of the Internal Revenue Code, the amount of the increase shall be a charge against the persons who receive the excess retirement accumulation that gives rise to the increase, and shall be equitably prorated among all persons who receive interests in qualified employer plans and individual retirement plans to which the excess retirement accumulation is attributable.

§ 20115

Enacted by Stats. 1990, Ch. 79.

Where the payment of any portion of the federal estate tax is extended under the provisions of the federal estate tax law, the amount of extended tax shall be a charge against the persons who receive the specific property that gives rise to the extension.

§ 20116

Enacted by Stats. 1990, Ch. 79.

(a)If all property does not come into the possession of the personal representative, the personal representative is entitled, and has the duty, to recover from the persons interested in the estate the proportionate amount of the estate tax with which the persons are chargeable under this chapter.

(b)If the personal representative cannot collect from any person interested in the estate the amount of an estate tax apportioned to the person, the amount not recoverable shall be equitably prorated among the other persons interested in the estate who are subject to proration.

§ 20117

Enacted by Stats. 1990, Ch. 79.

(a)If a person is charged with or required to pay an estate tax greater than the amount prorated to that person because another person does not pay the amount of estate tax prorated to the other person, the person charged with or required to pay the greater amount has a right of reimbursement against the other person.

(b)The right of reimbursement may be enforced through the personal representative in the discretion of the personal representative, or may be enforced directly by the person charged with or required to pay the greater amount, and for the purpose of direct enforcement the person is subrogated to the position of the personal representative.

(c)The personal representative or person who has a right of reimbursement may commence a proceeding to have a court determine the right of reimbursement. The provisions of Article 3 (commencing with Section 20120) shall govern the proceeding, with changes necessary to make the provisions appropriate for application to the proceeding, and the court order determining the right of reimbursement is an enforceable judgment.