WHEN TO USE THE FORM: This form is to be used to establish that there is no inheritance tax lien for property held in joint tenancy between the Decedent and the spouse of the Decedent. If there is no inheritance tax proceeding, either independent or as part of the probate proceeding, the Affidavit of Marital Status will meet Title Standard Number 98 (set forth below) establishing that all interests in the real estate have passed to the surviving spouse and therefore, there is no inheritance tax lien.

HOW TO USE THE FORM: The form should be signed by a person knowledgeable of the marital status and the death of the Decedent. Neither the county attorney not the County Court participates in the Affidavit. Paragraph 4 may be modified to allege other succession interests of the surviving spouse.

WHEN NOT TO USE THE FORM: Do not use this form if there is Federal Estate Tax, Inheritance Tax or Nebraska Estate Tax unless paragraph 3 is omitted. Do not use the form if the real estate is held in joint tenancy with a third party as well as the Decedent and the deceased spouse of the Decedent. This form may not be needed if there is a probate proceeding or inheritance tax determination proceeding in which death and marital status may be established by the pleadings.

COMMENTS: Filing the death certificate with the real estate description will establish the death of the deceased. Notwithstanding that this may be a self-serving Affidavit, it is appropriate to document the value of the real estate as of date of death for purpose of basis. This will not bind the Internal Revenue Service as to the amount of basis, but will be helpful in documenting the proposed value.

TITLE STANDARD NO. 98: INHERITANCE TAX LIEN ON INTERESTS PASSING TO THE SURVIVING SPOUSE, Approved October 1984 For a deceased dying on or after January 1, 1983, an inheritance tax determination is not required if the title examiner is satisfied that all interests in the real property being examined pass to the deceased's surviving spouse, whether by Will or in any other manner, including joint tenancy.

COMMENT: Under Neb. Rev. Stat. § 77-2004, effective January 1, 1983, "Interests passing to the surviving spouse by Will, in the manner set forth in Section 77-2002, or in any other manner shall not be subject to tax." In light of this blanket exemption, it is unreasonable for a title examiner to require an inheritance tax determination if it is shown that all interests in the real property pass to the surviving spouse. It is reasonable for an examiner to require customary proof of the death of the deceased, and marital relationship existing at time of death. This applies even though a probate proceeding is pending or has been closed.