At a glance
- When the grantor dies, a revocable trust usually becomes irrevocable and needs its own employer identification number (EIN).
- The application is free and online, but a few entries decide where IRS mail goes and which years the IRS expects returns.
- A wrong start date, a wrong entity type, or the decedent named as responsible party can produce years of IRS notices.
- A trust can owe no tax and still have to file Form 1041.
- If you already have an EIN, you can confirm what the IRS has on file with one phone call.
Seemingly simple decisions can cause real difficulty in administering an estate. One of them is how to get the trust its new tax identification number after the grantor dies: whether the successor trustee applies alone, accepts help from a bank teller or a friend, or asks an attorney or accountant to handle it.
What Changes at Death
The grantor, sometimes called the settlor, is the person who creates the trust and usually puts property into it. While the grantor is alive, a revocable trust is generally a "grantor trust" for income tax purposes. It has no separate tax existence. In most cases it uses the grantor's Social Security number, and the grantor reports the trust's income on a personal return.
When the last grantor dies, that changes. The trust becomes irrevocable and a separate taxpayer, and it needs its own EIN (Form SS-4 instructions; Treas. Reg. § 301.6109-1(a)(2)). A trust cannot keep using a dead person's Social Security number.
Two early mistakes are common: assuming nothing needs to be done with a joint trust when the first spouse dies, and assuming that a trust with little or no income needs neither its own EIN nor a tax return.
• Joint trusts need attention at the first death. In many joint trusts, the first spouse's death creates an irrevocable family or bypass trust that needs its own EIN right away. The surviving spouse's share usually keeps using the survivor's Social Security number. Treating the whole trust as unchanged until the second death is a common mistake.
• Filing is not limited to trusts that owe tax. A domestic trust must file Form 1041 if it has any taxable income, if it has gross income of $600 or more, or if it has a nonresident-alien beneficiary (Form 1041 instructions). A trust can owe no tax and still have to file.
Two other decisions come up at the same time:
• The § 645 election. A revocable trust can elect to be treated as part of the decedent's estate for income tax purposes (Form 8855). The election can allow a fiscal year and a single return. It is easy to miss if no one raises it.
Why the Paperwork Matters
Institutions need to know the trust's exact name, who the trustee is, and what the trustee may do. In Ohio, a certification of trust or Certificate of Trust, gives them that without disclosing the whole trust document. A memorandum of trust is used mainly when recording real estate ( and in most cases is unnecessary if a certificate trust is recorded). These documents often show the trust's EIN as well.
When an attorney or accountant handles the application and the certification together, both are usually done within a few days and agree with each other. Increasingly, though, successor trustees apply on their own, or rely on well-meaning helpers with neither legal nor tax training. The results range from frustrating to costly.
What Goes Wrong: Seven Cases
Each of these is drawn from actual cases.
• The bank teller. A successor trustee goes to the bank to reach the trust's account. A helpful teller explains that the trust needs a new number and helps the trustee apply online. The account is closed, a new one is opened under the new EIN, and the trustee leaves with a slip of paper showing the number. At the next institution, the trustee presents the death certificate and the EIN and asks to liquidate the account. The institution refuses. It doesn't know what the trust's title is or should be, or what authority the successor trustee has. After several attempts, the trustee hires an attorney to prepare the documents that would have prevented the delay in the first place.
• Same facts, wrong date. The attorney reviews the teller's paperwork and finds that the application listed the date the trust was signed, years ago, as the date it was funded. For a trust that becomes irrevocable at death, the right date is generally the date of death, when the trust first needed its own number. A wrong date can produce IRS letters demanding Form 1041 returns for every year back to that date.
The letters reflect a matching problem from a bad application. They do not mean every trust must file from the day it was signed. The attorney offers to help correct the record now, before the letters arrive, rather than answer them later.
• Same facts, no copy. This time the teller applied online and printed nothing. The attorney can't tell what was entered and is reluctant to rely on a number that may cause loss later. Applying for a second number is not the answer. The IRS does not cancel EINs, and a trust should have only one. Instead, the trustee calls the IRS Business & Specialty Tax Line (800-829-4933) and asks for a 147C letter. The letter confirms the number and what the IRS has on file, and the trustee and attorney correct anything that is wrong.
• The decedent as responsible party. The teller names the deceased grantor as the responsible party, because the grantor created the trust. Form SS-4 still describes the responsible party for a trust as the grantor, owner, or trustor, and for an estate as the fiduciary. After the grantor is dead, though, the person who controls the trust is the successor trustee, and that trustee's number belongs on the application. Naming the decedent sends the mail to a dead person at an address the trustee is about to sell. Here the trust also received the decedent's IRA, which made the trust's income taxable. No one told the trustee a Form 1041 was due, and the IRS letters went unread at the old house. By the time the trustee learned of the return, the trust's assets had been distributed. A fiduciary who distributes assets before paying federal taxes can be personally liable. The trustee paid the tax, penalties, and interest from personal funds.
• The beneficiary who was also trustee. An insurance agent helps a successor trustee fill out a life insurance claim form, apply online for an EIN, and open a money market account for the proceeds. The trustee is also the trust's only beneficiary and receives means-tested benefits, such as SSI and Medicaid. The trust was drafted as a third-party special-needs trust to protect those benefits. A beneficiary who is also sole trustee can lose the protection the trust was written to give, and a distribution can count as income in the month it is paid. Some states, and some benefit programs, are stricter than others. Here the trustee needed advice before filing the claim. Resigning as trustee before the money landed was the point of the trust's design. No one told him, and the beneficiary lost benefits, including health coverage. The EIN wasn't the cause. The lack of legal advice was.
• Fourteen years of letters. A successor trustee applies online and administers the trust. The application lists the decedent as responsible party, the decedent's home as the mailing address, and the wrong start date. The IRS sends letters demanding Form 1041 returns for fourteen tax years, all to the decedent's home, which the trustee has already sold. Eventually a revenue agent calls. With the trust's assets long distributed, the trustee pays an attorney and an accountant from her own funds to resolve the matter. The returns were never really owed for those years; the trouble came from a bad application and mail that no one received.
• The wrong digits. A family friend helps the trustee get an EIN but writes the number down wrong. Neither notices. The IRS contacts the trust when a return is filed under the wrong number, and an accountant is hired to sort it out. A 147C letter would have caught the error in minutes.
Where the Trust’s EIN Application Goes Wrong
| Item on Form SS-4 | Common mistake | What to enter instead | What can happen |
|---|---|---|---|
| Legal name (line 1) | A shorthand name that doesn’t match the trust document | The trust’s exact name and date, matching the certification of trust | Institutions can’t match the number to the account title |
| Mailing address (lines 4a–4b) | The decedent’s home | The successor trustee’s address, or the attorney’s or accountant’s office | IRS letters go to a house that is about to be sold, and no one reads them |
| Responsible party (lines 7a–7b) | The deceased grantor | The successor trustee, who now controls the trust | The IRS links the trust to a dead person; mismatches and notices follow |
| Type of entity (line 9a) | “Estate” checked for a trust, or a trust number used for a probate estate | “Trust” for the trust; a separate EIN for any probate estate | Returns and notices are filed under the wrong kind of taxpayer |
| Date funded (line 11) | The date the trust was signed or first funded, years ago | Generally the date of death, when the trust first needed its own EIN | Letters can demand Form 1041 returns for every year back to that date |
| Closing month (line 12) | A fiscal year picked without a § 645 election | December, unless the trust will make a § 645 election to be taxed with the estate | Returns filed on the wrong schedule; a planning opportunity missed |
| Third-party designee | A helper applies with no written authority and keeps no copy | An authorized designee, a signed authorization, and a saved copy of the application | No one can later show what was entered or fix it quickly |
Line numbers refer to the current Form SS-4. The IRS revises the form from time to time, so check the current instructions before applying.
If You Already Have an EIN
- Confirm what the IRS has. Call the IRS Business & Specialty Tax Line at 800-829-4933 and ask for a 147C letter. Check the trust's name, the mailing address, and the start date.
- Answer every notice. If letters arrive demanding returns for years before the death, respond in writing. Explain the date of death and the date the trust first needed its own number. Ignoring the letters lets the problem grow.
- Report changes on Form 8822-B. Use Form 8822-B to report a new mailing address or a new responsible party, such as a change of trustee. A change of responsible party must be reported within 60 days. Form 8822-B does not, by itself, fix a bad original application.
- Keep the paper. Save the IRS confirmation notice and a copy of the application with the trust's records.
A Word to Helpful Professionals
Tellers, bankers, insurance agents, brokers, financial planners, and friends often help with this application in good faith. IRS procedures require a third party who applies on someone else's behalf to be authorized by that person. When the helper skips that step or keeps no copy, a simple typo or online glitch can take weeks to untangle. Fixing an online mistake can take longer than getting the number right the first time.
Helpers should also know that they may be liable for an application completed incorrectly, and that their professional insurance may not cover the loss. For non-lawyers, advising a trustee on these choices may amount to the unauthorized practice of law or go beyond the scope of their license.
Bottom Line
The EIN application is free, and a careful trustee can complete it. But a handful of entries decide where the IRS sends its mail and which years it expects returns: the start date, the mailing address, the responsible party, the type of entity, and the tax year. Other decisions travel with it, such as the § 645 election, Form 56, a joint trust's first-death split, and the certification of trust institutions will ask for. That is where an attorney or accountant earns the fee. A few hours of professional help at the start costs far less than years of IRS letters, a frozen account, or a trustee paying the trust's taxes out of pocket.
