Are Estate Planning Fees Tax Deductible and How Does It Work?

August 18, 2026
Nischay Rawal, CPA, EA
August 18, 2026
Read Time:
23 minutes
Nischay Rawal
Managing Partner
Read Time:
23 minutes

‍Estate planning fees are not tax deductible on an individual return, because the Tax Cuts and Jobs Act eliminated the deduction category they belonged to starting in 2018, and the One Big Beautiful Bill Act made that elimination permanent in July 2025. Paying an attorney to draft your will, your trust, or your powers of attorney produces no federal income tax deduction, and no reversion is scheduled.

Two separate paths remain open, and most published guidance on this question either misses them or is still describing a rule that expired years ago. The sections below cover what the old deduction looked like, what specifically changed, why the change is now permanent, which costs an estate or trust can still deduct under a different code section, which return each expense belongs on, what happens to unused deductions when an estate closes, how business owners are treated differently, the 2026 filing thresholds, the state layer, and how to sort an attorney's invoice so the deductible portion is not lost.

Key Takeaways

  • Individuals cannot deduct estate planning fees. Wills, trusts, powers of attorney, and health care directives all produce personal, nondeductible expenses.
  • The deduction was eliminated by the Tax Cuts and Jobs Act effective in 2018 and made permanent by the One Big Beautiful Bill Act on July 4, 2025. Guidance saying it returns in 2026 is out of date.
  • Estates and non-grantor trusts are treated under a different provision and can still deduct administration costs, because Section 67(e) sits outside the disallowed category.
  • The governing question at the entity level is the "but for" test: would this cost have been incurred if the property were not held in an estate or trust.
  • An expense deductible on both the estate tax return and the fiduciary income tax return can only be claimed on one, and the executor makes that election.
  • Unused deductions in an estate's final year pass to the beneficiaries and keep their character rather than disappearing.
  • The 2026 federal estate tax exemption is $15,000,000 per person, which means the filing question for most families is about portability rather than tax.

Are Estate Planning Fees Tax Deductible?

Estate planning fees are not tax deductible for an individual taxpayer under current federal law, and that has been true for every tax year since 2018. The answer applies to the full range of documents an estate planning attorney produces.

Drafting a will produces no deduction. Establishing a revocable living trust produces no deduction. Powers of attorney, health care directives, guardianship designations, and beneficiary designation reviews all fall on the same side of the line. The Internal Revenue Service treats these as personal expenses, and personal expenses are nondeductible as a starting principle under the code.

The reason is narrower than most readers expect, and it is worth following, because the same reasoning determines what still works. These fees were never deductible as a category of their own. They qualified only when they fit inside a broader bucket that no longer exists. Deliberate tax planning around an estate now happens through the structure of the plan itself rather than through a deduction for the cost of building it.

Were Estate Planning Fees Ever Deductible?

Estate planning fees were deductible before 2018, but only the portion attributable to specific activities and only as a miscellaneous itemized deduction subject to a 2% floor. The authority was Section 212 of the Internal Revenue Code, which permitted deductions for expenses tied to producing income, managing income-producing property, and obtaining tax advice.

Section 212 never covered the whole invoice. An attorney's time spent naming guardians for minor children, transferring personal property, or drafting a health care directive was personal in character and nondeductible even under the old rules. What qualified was the slice tied to income-producing assets or to tax advice, which in a typical estate plan was a minority of the total.

The qualifying slice then had to clear two additional hurdles. All miscellaneous itemized deductions combined had to exceed 2% of adjusted gross income before the first dollar counted, and the taxpayer's total itemized deductions had to exceed the standard deduction before itemizing made sense at all.

Why Was the Old Deduction Hard to Reach Anyway?

The old deduction was hard to reach because two thresholds stacked on top of each other, and most taxpayers cleared neither. A household with $200,000 of adjusted gross income needed more than $4,000 of combined miscellaneous expenses before any deduction began, and only the excess above that floor counted.

Stacking is what made the provision largely theoretical. A taxpayer might have $5,000 of qualifying miscellaneous expenses, clear the floor by $1,000, and then discover that adding $1,000 to their itemized total still left them below the standard deduction. The deduction existed on paper and produced nothing on the return. That history matters for a practical reason: the taxpayers who lost the most in 2018 were a much smaller group than the headlines suggested.

What Changed the Rule?

The Tax Cuts and Jobs Act eliminated the deduction by adding Section 67(g) to the Internal Revenue Code, which disallowed all miscellaneous itemized deductions for tax years beginning after December 31, 2017. The provision appeared in Section 11045 of the act.

The mechanism is worth stating precisely, because it explains the scope. Congress did not target estate planning fees. It disallowed the entire category those fees had been claimed under, which swept in dozens of unrelated expenses at the same time. The 2% floor became irrelevant overnight, since a floor governs how much of a deduction is allowed and the deduction itself no longer existed.

Section 212 remains in the code. It still describes the expenses in question and still authorizes them in principle. What Section 67(g) did was block the path from that authorization to an actual deduction on an individual return, which is why guidance referring to the 2% floor as though it still applies is describing a mechanism that no longer has anything to operate on.

Is the Suspension Permanent?

The suspension is permanent, because the One Big Beautiful Bill Act struck the expiration date from the statute when it was signed on July 4, 2025. This is the single most common error in currently published guidance on this topic.

As originally enacted, Section 67(g) applied only to tax years beginning after December 31, 2017 and before January 1, 2026. That end date created a widely repeated expectation that the deduction would return automatically in 2026. Section 70110 of the One Big Beautiful Bill Act removed the phrase establishing that end date and redesignated the provision as Section 67(h). The disallowance now runs indefinitely.

Permanence changes the planning posture rather than the arithmetic. There is no longer any reason to defer a discretionary expense into a later year in the hope of catching a restored deduction, and no reason to preserve documentation on that theory. A separate provision reinforces the direction: beginning in 2026, a rewritten Section 68 caps the benefit of itemized deductions at 35 cents per dollar for taxpayers in the top bracket, which trims the value of the itemized deductions that do survive.

Are Financial Planning and Investment Advisory Fees Deductible?

Financial planning and investment advisory fees are not deductible on an individual return, because they were disallowed by the same provision that eliminated estate planning fees. Anyone researching one of these questions is researching all of them, since a single statutory change governs the entire group.

The expenses that fell into the disallowed category alongside estate planning fees include the following:

  • Investment advisory and management fees paid on a taxable brokerage account, including asset-based fees charged as a percentage of assets under management.
  • Tax preparation fees paid for an individual return, along with fees for tax advice and tax planning provided to an individual.
  • Financial planning fees paid to an advisor for personal financial planning work.
  • Safe deposit box rental used to store investment documents or securities.
  • Unreimbursed employee business expenses, which were the largest category by volume for most filers.
  • Legal fees for producing or collecting taxable income, other than those tied to a trade or business.

One meaningful carve-out survives inside the tax preparation category. The portion of a preparation fee allocable to a Schedule C business, a Schedule E rental, or a Schedule F farm remains deductible against that activity, because it is a business expense rather than a personal one. A sole proprietor who asks their preparer to itemize the invoice between the personal return and the business schedules preserves a deduction that is otherwise lost by default.

What Expenses Can an Estate Deduct?

An estate can deduct the costs of administering the estate, because Section 67(e) places those costs outside the disallowed category entirely. This is the path that survives, and it is the part most published guidance handles poorly or skips.

Section 67(e) permits an estate or non-grantor trust to deduct costs paid in connection with administration that would not have been incurred if the property were not held in the estate or trust. Final regulations issued on September 21, 2020 confirmed the treatment directly, stating that these costs are not itemized deductions, are not miscellaneous itemized deductions, and are therefore not disallowed by the suspension that applies to individuals.

The distinction is between the person and the entity rather than between one kind of fee and another. The same attorney billing the same hourly rate produces a nondeductible personal expense when advising a living client on a will, and a deductible administration expense when advising the executor of that client's estate after death. Families coordinating multiple entities and reporting obligations typically manage this inside a family office structure so the classification happens at the time of billing rather than during return preparation.

What Is the "But For" Test?

The "but for" test asks whether a cost would have been incurred if the property were not held in an estate or trust, and only costs that would not have been incurred qualify under Section 67(e). One question decides most fiduciary deduction disputes.

Applying it is straightforward once the question is framed correctly. Probate court filing fees would not exist without an estate, so they qualify. Preparing a fiduciary income tax return would not be necessary without an estate, so that qualifies. Investment advisory fees on a portfolio held by the estate would have been incurred by an individual holding the same portfolio, so those generally do not qualify and remain disallowed even inside the entity.

Costs that fail the test do not convert into something else. They stay in the disallowed category at the entity level for the same reason they are disallowed at the individual level, which is why the classification work has to happen before the return is prepared rather than after.

What Expenses Are Deductible on Form 1041?

Expenses deductible on Form 1041 are those tied to administering the estate or non-grantor trust, including fiduciary commissions, attorney fees for administration, accounting and tax return preparation for the entity, appraisals, and court costs. The table below sorts the common categories.

ExpenseIndividualEstate or Non-Grantor TrustWhere ClaimedDrafting a will or living trustNoNot applicableNowhereTax advice given to a living individualNoNot applicableNowhereInvestment advisory feesNoGenerally no, fails the "but for" testNowhereExecutor or fiduciary commissionsNoYesForm 1041 or Form 706Attorney fees for estate administrationNoYesForm 1041 or Form 706Preparing the estate's tax returnsNoYesForm 1041Appraisals of estate assetsNoYesForm 1041 or Form 706Probate court costsNoYesForm 1041 or Form 706Funeral expensesNoEstate tax return onlyForm 706Legal fees of a trade or businessYes, if ordinary and necessaryYesBusiness return or schedule

Sources: IRC Sections 67(e), 67(h), 162, 212, 642(g), and 2053; Treasury Regulation 1.67-4; T.D. 9918 (final regulations, September 21, 2020); IRS Instructions for Form 1041 and Form 706.

Grantor trusts sit outside this table entirely. A revocable living trust is disregarded for income tax purposes while the grantor is alive, so its expenses are treated as the grantor's own and receive the same disallowance an individual receives. Accurate financial statements for the entity are what make this classification defensible when the return is examined.

What Is the Difference Between Form 706 and Form 1041?

Form 706 is the federal estate tax return, which reports the value of everything the decedent owned at death, while Form 1041 is the fiduciary income tax return, which reports income the estate earns during administration. Two different taxes, two different measurement periods, two different filing triggers.

Form 706 measures a transfer at a single moment. It is due nine months after the date of death, with a six-month extension available on request, and it is required when the gross estate combined with adjusted taxable gifts exceeds the basic exclusion amount for the year of death.

Form 1041 measures income over time. An estate that holds assets for eighteen months while probate runs will earn interest, dividends, rent, and possibly capital gains during that period, and those earnings are taxed to the estate or to the beneficiaries who receive distributions. Administration expenses reduce that income.

Can You Deduct the Same Expense on Both Returns?

You cannot deduct the same expense on both returns, because Section 642(g) requires the executor to choose one and file a statement waiving the deduction on the other. Many administration costs qualify in both places, which makes this an actual decision rather than a formality.

The choice turns on which return produces more benefit. An estate large enough to owe federal estate tax faces a 40% rate on the top dollars, which generally makes the estate tax return the better home for a deductible expense. An estate below the filing threshold owes no estate tax at all, so the deduction is worth nothing on Form 706 and should go to Form 1041 where it offsets income taxed under the compressed fiduciary brackets.

Compressed brackets are what make the fiduciary side worth more than executors expect. Estates and trusts reach the top marginal income tax rate at a very low income level compared with individuals, so a deduction applied against fiduciary income frequently saves tax at a higher effective rate than the same deduction would save an individual beneficiary.

What Happens to Unused Deductions When an Estate Closes?

Unused deductions in an estate's final year pass to the beneficiaries under Section 642(h)(2) and keep the character they had in the hands of the estate. Character preservation is the part that changed, and it changed in the taxpayer's favor.

Final-year deductions frequently exceed final-year income, because administration costs cluster at the end while income has mostly been distributed. Before the 2020 final regulations, there was real doubt about whether those excess deductions arrived at the beneficiary as disallowed miscellaneous deductions, which would have made them worthless. The regulations resolved the question by confirming that a Section 67(e) deduction remains a Section 67(e) deduction when it passes through.

Beneficiaries receive the amounts on Schedule K-1 and claim them on their own returns. Executors closing an estate should confirm the final-year allocation is calculated correctly, since this is the last opportunity to move value to the beneficiaries and it cannot be revisited after the estate terminates.

Are Estate Planning Fees Deductible for a Business Owner?

Estate planning fees are deductible for a business owner only to the extent they are ordinary and necessary expenses of the business itself under Section 162, which is a narrower opening than it first appears. Owning a business does not convert personal planning into a business expense.

The distinction runs along whose interest the work serves. Legal fees for drafting a buy-sell agreement between shareholders, for restructuring ownership, or for negotiating a transfer of business interests serve the business and can qualify. Legal fees for deciding which of your children inherits your shares serve you personally and do not.

A second rule constrains even the qualifying half. Costs that create or enhance a long-term asset, or that facilitate an acquisition or reorganization, must generally be capitalized under Section 263 rather than deducted currently. A succession plan that restructures the ownership of a company often produces capitalizable costs rather than deductible ones, recovered over time or added to basis instead of claimed in the year paid.

Much of this is decided before the planning starts. The entity structure in place when succession work begins determines which costs are even capable of qualifying.

Revisiting that structure ahead of a transfer is standard business consulting practice rather than an afterthought, and it is considerably cheaper than discovering the constraint after the legal work is already billed.

Do I Have to File an Estate Tax Return?

You have to file Form 706 when the gross estate plus adjusted taxable gifts exceeds the basic exclusion amount, which is $15,000,000 per individual for deaths occurring in 2026. The One Big Beautiful Bill Act set that figure and made it permanent, with inflation indexing beginning in 2027.

At that threshold, federal estate tax is not the issue for the overwhelming majority of families. The IRS reports that fewer than 0.2% of estates owe any federal estate tax at current exemption levels, and the top rate of 40% applies only to the amount above the exclusion.

Filing when no tax is owed is frequently the right move anyway, and this is where families lose the most money. Portability lets a surviving spouse add the deceased spouse's unused exclusion to their own, potentially reaching $30,000,000 for a couple, but the election exists only on a timely filed Form 706. An executor who skips the filing because no tax is due forfeits an exclusion that can be worth millions when the second spouse dies years later.

A nine-month deadline is easy to miss during a difficult year. Coordinating the decision within the family's broader wealth coordination is what keeps it from passing unnoticed.

Estates frequently carry a second filing problem alongside the first. A decedent's own outstanding returns generally have to be resolved before the estate can close, and the path forward on unfiled returns starts with reconstructing each open year.

How Much Money Can You Inherit Without Having to Pay Taxes?

You can inherit any amount without paying federal income tax on it, because an inheritance is not income to the person who receives it. The federal estate tax is assessed against the estate before distribution, not against the beneficiary.

Two consequences follow that beneficiaries frequently misunderstand. Income the inherited assets generate after you receive them is taxable to you in the ordinary way. And inherited assets generally receive a basis step-up to fair market value at the date of death, which eliminates the appreciation that accumulated during the decedent's lifetime and substantially reduces the capital gains owed if you later sell.

A small number of states impose an inheritance tax assessed on the recipient rather than the estate, which operates on entirely separate rules and thresholds from the federal system.

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Does It Matter Which State You Live In?

The state matters a great deal, because state estate and inheritance taxes apply at thresholds far below the federal exclusion and several states impose them on estates that owe nothing federally. A family comfortably under $15,000,000 can still face a state-level bill.

Eighteen states and the District of Columbia impose an estate tax, an inheritance tax, or both. None matches the federal threshold, and several sit at a small fraction of it, which means the binding constraint for most families is the state layer rather than the federal one.

Florida imposes neither an estate tax nor an inheritance tax, so a Miami family faces only the federal analysis. That advantage travels less well than people assume. Real property is generally taxed by the state where it sits regardless of where the owner lived, which means a Florida resident holding a vacation home or rental property in a taxing state can create an obligation there. Coordinating residency, property location, and entity structure ahead of time is the substance of long-term planning for families with holdings in more than one state.

How Should You Handle the Attorney's Invoice?

You should ask the attorney to itemize the invoice by service category before you pay it, because an undifferentiated bill makes it impossible to identify any portion that qualifies under a surviving provision. This is the one practical step that changes outcomes, and almost nobody takes it.

A single line reading "estate planning services" forecloses the analysis entirely. An invoice broken out by task lets you and your preparer separate personal planning from business restructuring, and lets an executor separate administration work from work that would have happened regardless. The sequence below covers what to do:

  1. Request itemization at engagement, not at billing. Ask the firm to break time entries out by category in the engagement letter, when the request is routine rather than awkward.
  2. Separate personal planning from business work. Wills, trusts, and directives are personal. Buy-sell agreements, ownership restructuring, and entity work belong to the business analysis.
  3. Flag anything that may require capitalization. Fees that facilitate an acquisition, reorganization, or the creation of a long-term asset are capitalized rather than deducted.
  4. For an estate, apply the "but for" test to each line. Costs that exist only because the property is held in the estate qualify under Section 67(e). Costs that would have been incurred anyway do not.
  5. Decide the Section 642(g) election before either return is filed. Compare the value of the deduction on the estate tax return against its value on the fiduciary return, then file the required waiver statement.
  6. Keep the itemized invoices with the return file. The classification is only as defensible as the documentation supporting it, and reconstructing an attorney's time entries years later is rarely possible.

Executors are the group with the most at stake in this sequence, because they are making elections on behalf of beneficiaries and carry personal responsibility for the returns they sign. Working the classification through with a preparer at the outset is considerably cheaper than defending it afterward, and planning support during administration costs less than the alternative.

The alternative is a notice. Responding to one after the fact usually requires IRS representation and the same documentation that would have taken an hour to organize at billing time.

Frequently Asked Questions

Are Funeral Expenses Tax Deductible?

Funeral expenses are not deductible on an individual income tax return, and they are deductible only on the federal estate tax return under Section 2053. A family member who pays for a funeral out of their own pocket receives no deduction at all. An estate large enough to file Form 706 may deduct reasonable funeral costs there, which for most families means the deduction has no practical value because no Form 706 is required.

Are Executor Fees Deductible?

Executor fees are deductible by the estate as an administration expense, and they are taxable income to the executor who receives them. The deduction goes on either Form 1041 or Form 706 under the Section 642(g) election. Family members serving as executor sometimes waive the commission for exactly this reason, since taking it converts an inheritance that arrives tax-free into ordinary income on their own return.

Are Tax Preparation Fees Deductible?

Tax preparation fees are not deductible for an individual return, though the portion allocable to a business or rental activity remains deductible against that activity. A preparer who bills a single flat fee for a return covering wages, a Schedule C, and a Schedule E is producing an invoice that hides a real deduction. Asking for an allocation across the schedules recovers it.

Can a Revocable Living Trust Deduct Legal Fees?

A revocable living trust cannot deduct legal fees while the grantor is alive, because the trust is disregarded for income tax purposes and its expenses are treated as the grantor's own. The trust files no separate income tax return during that period, and the grantor faces the same disallowance any individual faces. The analysis changes after the grantor's death, when the trust generally becomes irrevocable and can qualify for Section 67(e) treatment on genuine administration costs.

Are the Costs of Contesting a Will Deductible?

The costs of contesting a will are generally not deductible by the individual contesting it, because the expense is personal in character. An estate defending against a contest is in a different position, since defending the estate against a claim is an administration cost that would not exist without the estate. The party paying the fee determines the answer more than the nature of the litigation does. Disputes over how those costs were classified surface later as IRS notices, and they turn on documentation rather than on the underlying position.

Should You Still Get an Estate Plan If the Fees Are Not Deductible?

You should still get an estate plan, because the deduction was never the reason to have one and was worth very little even when it existed. An estate plan controls who receives your assets, avoids the delay and public record of intestate probate, names guardians for minor children, designates decision-makers for medical and financial matters, and preserves the portability election for a surviving spouse. The value of those outcomes is not measured against a deduction that would have saved a few hundred dollars in a good year.

What It All Comes Down To

Estate planning fees are not deductible for individuals, that has been the rule since 2018, and the One Big Beautiful Bill Act closed the door permanently in July 2025. Any source telling you the deduction returns in 2026 is describing a sunset that Congress removed. What survives sits at the entity level, where Section 67(e) lets an estate or non-grantor trust deduct administration costs that exist only because the property is held there, and at the business level, where genuinely business-purpose legal work remains deductible under the ordinary rules.

Turning that into money requires two unglamorous habits: an itemized invoice, and a decision about which return each qualifying expense belongs on. Both are easy at the time and nearly impossible to reconstruct later.

We do not draft estate plans, which means our read on this question carries no interest in selling you one. If you are an executor sorting through administration expenses, a business owner separating succession costs from personal planning, or a family weighing a portability filing, the team at NR CPAs & Business Advisors in Miami can work through the classification with you.

A short conversation is usually enough to tell whether anything on your invoice qualifies. You can talk with us about it, or call +1 954-231-6613.

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