Request By:
Mr. John R. Cummins
Attorney at Law
3300 First National Tower
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 395.605 provides for an informal settlement of an estate by the district court where the fiduciary is the sole beneficiary of the estate. Thus the court, may, in such instances, dispense with various formalities in KRS Chapter 395 relating to settlements of estates.
Your letter, which presents the factual background and question for our opinion, reads in part:
"It has come to my attention that the present practice of the Jefferson District Court is to require that an informal final settlement for an estate include a duplicate or photocopy of the Kentucky inheritance tax release. The Court has refused to accept an informal final settlement which states that all inheritance, estate or similar death taxes have been paid, where the settlement is not accompanied by a copy of the tax release.
"Is this position valid? KRS 395.605(1) provides that the settlement must state that all inheritance, estate or similar death taxes have been paid. It further requires that a duplicate or a photocopy of such tax releases be attached if available. The language of the statute does not require the copy of the tax release where it is not available, in my reading.
"Nor does the requirement of such a tax release serve any valid purpose; the Department of Revenue can always assert any unpaid inheritance taxes against the beneficiaries of the estate directly, and the liability can even be imposed against the personal representative after settlement. "
KRS 395.605(1) reads in part:
"(1) Upon the sworn application of any fiduciary, that the fiduciary is the sole beneficiary of any estate, the court may dispense with the requirements of this chapter regarding settlement of fiduciaries accounts and may dispense with the requirements of a surety for the fiduciary and shall accept from the fiduciary an informal settlement. The informal settlement shall be made, under oath, by the fiduciary and shall state that the estate was solvent; that all legal claims and debts have been paid, or if not paid, the manner in which said claims and debts have been provided for; that all inheritance, estate or similar death taxes have been paid and a duplicate or photocopy of such tax releases shall be attached, if available;"
It is our opinion that the language, "and a duplicate or photocopy of such tax releases shall be attached, if available," is dispositive of your question. (Emphasis added). The term "available" means "accessible" or "obtainable". Webster's Seventh New Collegiate Dictionary (Merriam-Webster) p. 60. We further believe that if the tax releases are available, the fiduciary must attach a duplicate or photocopy of the releases to his sworn application. If the tax releases are not available, then the fiduciary must so declare in his sworn application.
We think this construction is consistent with the overall policy expressed in the context of subsection (1) of KRS 395.605. From the express language of the subsection, it is clear that the district court may accept from the fiduciary an informal settlement of an estate, primarily upon the sworn statement of the fiduciary, minus extrinsic evidence, except for the tax releases (if available). Thus under the clearly expressed policy, the district court has no authority to require, as a condition precedent, the attaching of the tax releases to the application. The court can require the fiduciary to either attach the tax releases, if available, or, if not available, to so state in his or her application for informal settlement.
Under this analysis, we do not find it necessary to explore the tax liability position of the Department of Revenue as a matter of statutory law.
In this situation, the significant language of the statute is clear and unambiguous. There is no room for construction. The statute must be accepted as written.