Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan deals with the Tax Court consequences of Norm Dacey’s blockbuster, the inter vivos self-settled probate-dodger.

Verlyn L’Heureux, Docket No. 10086-20, filed 4/25/25 (him/he) is no longer around when his ex’r moves to sub in for the deceased. Though the ex’r is designated in the late Verlyn’s will, he will not seek to probate same.

Taishoff says the will was doubtless a pourover, designed to catch any goodies that the late Verlyn couldn’t title into the trust before he became the late Verlyn, and pour same into the trust. If all the goodies got titled into the trust in time, no need to probate the will.

Except.

“To the extent Mr. K seeks, in his capacity as successor trustee, to represent the decedent’s estate, we must deny his motion, as we have held that the successor trustee of a trust established during a decedent’s lifetime is not legally authorized to represent a decedent’s estate before this Court. See Sander v. Commissioner, T.C. Memo. 2022-103.” Order, at p. 1. (Name omitted).

For the story of Leda Sander, see my blogpost “Unavoiding Probate,” 10/6/22.

The problem is State law. Rule.60(c) says the capacity of a fiduciary or other representative to litigate in Tax Court shall be determined in accordance with the law of the jurisdiction from which such person’s authority is derived. State law determines rights, Federal law determines how same shall be treated for tax purposes.

Ch J Kerrigan tells ex’r-designate and IRS to discuss whether the will is going to be probated after all, or an adm’r appointed, or whether the heirs at law will take up the quarrel.

A docket search shows the late Verlyn sought trial in ID, so it’s a reasonable inference he was domiciled there. What ID law provides in this case I have no idea. But I would not be surprised, if State law is ambiguous in this regard, a Federal court will not engage in complex, subjective inquiries under State law. Wherefore, successor trustees must be prepared to deal with probate after all.

And their estate planning attorneys should so advise them.