Pennsylvania Estate Planning, Trust, and Executor and Probate Frequently Asked Questions (FAQs)

Initially, many of our clients come to us with the same questions about: estate planning, being an executor, and about protecting their assets, estate, or inheritance in Pennsylvania. This estate law frequently asked questions page is meant to answer the most common questions we hear from clients each day and to help others build a foundation of knowledge about Pennsylvania estate planning, being an executor  in Pennsyvlania, elder law, trust law, and asset protection.

Do you have a question for us about Pennsylvania estate law that you do not see answered below? Contact us today to talk to an experienced lawyer about your legal needs or email your question to David Frees [email protected]
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  • Unpaid Legal Fees and Debts of An Insolvent Estate- What Gets Paid First?

    If Your Estate is in Debt, What Expenses Need to be Paid First?

    If an estate is considered to be insolvent it means that the estate does not have enough assets to pay off debts, claims, and other administrative expenses. When this happens, Pennsylvania law provides an order in which expenses, taxes, and claims that must be paid and which have priority.

    1.    The first expense that needs to be paid off is administration costs.

    2.     Secondly, the family tax exemption needs to be paid.  This exemption includes spouses, children, parents, or any other person living with the decedent during the time of death. 

    3.    The third category that needs to be paid is any funeral or burial expenses. During this time, any medical services; including hospital visits, nursing home costs, or the cost of any medicine, that the descendant was receiving at the time of his death needs to be paid.

    Note: there is a difference in priority of medical expenses depending on when they were incurred. 

    4.    The fourth set of expenses that the executor needs to pay is the cost of the grave marker. 

    5.    The fifth cost that an executor needs to acknowledge is cost regarding the rent for the occupancy of the decedent’s residence. 

    6.    Next, any claims made by the Commonwealth of Pennsylvania or any subdivisions of the Commonwealth need to be addressed.

    7.    Finally, any other claims that have been brought against the descendant. 

    It is important to know that there is no priority of claims if they are in the same level of priority. And, this list is general. If assets are insufficient to pay the decedent’s bills and expenses you as executor should get legal and accounting advice to avoid personal liability.

    For more information regarding claims against an estate please email or call David M. Frees, III at [email protected] or 888-573-7407.

  • Naming a Beneficiary of Life Insurance and Retirement Policies- Who, What, and Why?

    A “beneficiary” is a person or legal entity you have
    chosen to receive the value of an estate, trust,
    retirement plans, or insurance policies. 

    There are two basic types of beneficiaries.
    The first is a primary beneficiary. A primary beneficiary
    is the first person or entity to receive proceeds from an estate.
    If there is more than one person or entity listed as a primary beneficiary
    the profits will be divided equally or according to the percentages
    you selected. The second type of beneficiary is a contingent beneficiary.
    If there were no living primary beneficiaries, a contingent or secondary
    beneficiary would then receive the remaining assets of an estate.
    If there are no contingent beneficiaries, be sure to ask how the funds 

    will be distributed. In the case of an IRA, 401(k), or other retirement accounts,
    having them default to a will or estate might be desirable. So spend 

    some time thinking about your beneficiaries and consider
    the following information.

     Before designating a beneficiary it is important to know who can be named.
    Some examples of who can be designated as a beneficiary are,
    spouses, parents, children (who are over the age of 18), trusts,
    estates, friends, charities, organizations, churches, or even universities.
    When you do name a beneficiary be specific as possible to try and
    eliminate any question regarding the identity of a particular beneficiary. 

     Once beneficiaries of your insurance and other accounts have
    been designated, it is important to keep the designations up to date.
    If there are changes to estate planning documents, retirement plans,
    or insurance policies beneficiary changes might also be necessary.
    This typically happens when major life changes happen such as marriage,
    divorce, death, retirement, major financial changes, and/or changes
    in estate tax or laws.

    It is therefore important to review these designations
    AND how they work with your will, trust, and estate planning
    documents on a regular basis.

    For more information regarding designating and updating beneficiaries,
    and estate planning. Please contact David M. Frees, III at
    [email protected] or call 888-573-7407.

     

  • What Should I Know About a Last Will and Testament?

    What Is A Last Will and Testament?

    Executing a last will and testament is not something
    that should be put off or avoided even though it can be a
    hard topic to discuss. If a person dies without a will the
    state will decide what will happen to their assets. When a
    person dies without a will it is known as intestate succession.
    Typically, an individual’s spouse or children would receive the
    assets first. If an individual does not have a spouse or any children,
    the closest living relatives would then receive the assets.
    In order to avoid intestate succession, a last will and testament
    should be created stating what should happen to the
    assets in the event of a death.

    Some individuals have chosen created a holographic will as
    their last will and testament. A holographic will is a handwritten will.
    Holographic wills are not accepted in every state because it is
    hard to prove its authenticity. Therefore, holographic wills are generally
    not recommended. As a result, having a will and estate attorney
    draft a last will and testament along with other important estate

    planning documents is the best way to secure an individual’s assets. 

    A last will and testament specifies what should happen with an
    estate once an individual passes away. This document states who
    should look after any children that have survived the decedent,
    how properties should be divided, who should be in charge of
    administrating the estate, and any specific gifts that the decedent
    wanted to give to loved ones.

    In order to properly execute a last will and testament,
    you must be of sound mind. This means that the individual
    must have a clear understanding of the documents in which
    they are signing. The individual must be acting on their own free
    will without undue influence from others.  Lastly, the will must
    be signed, witnessed, and notarized in accordance with state laws.

    Once a last will and testament is executed, the will
    should be stored in a safe location. There are many different locations
    in which an individual can choose to store their original will.
    One option is to keep the last will and testament at the law firm
    where it was originally drafted. The law firm would store the will in a
    fire-proof safe where it could not be destroyed or damaged.
    Another option is to keep the last will and testament in a
    safe deposit box. An individual can also decide to store their
    will inside their own home. A last will and testament should be
    stored in a fire-proof or water-proof safe within a residence.
    This way if there is a flood or fire the estate planning
    documents will not be destroyed or damaged. 

     A last will and testament along with other estate planning
    documents should be periodically reviewed by an estate planning
    attorney. It is important to update or change estate planning
    documents when major events happen within a lifetime.
    For example, marriage, divorce, death, birth of children or
    grandchildren, major financial changes, or major law changes.
    It is recommended that estate planning documents be updated
    every five to seven years. Once changes have been made
    and executed, the previous will is revoked and is no longer valid.

    Please click the links, for more information regardinging living wills 
    and revocable living trusts.

    For more information regarding last wills and testament along
    with other estate planning documents
    please contact David M. Frees, III at 888-573-7407.

  • What Should I Know About A Living Will?

    What Is A Living Will?

        After creating a last will and testament, another important
    legal document that should be discussed is a living will.
    As technology continues to advance, the ability to keep people
    alive by using various life support systems is also increasing.
    Every individual has the right to decide whether or not they want
    to be kept alive by life support. A living will explains the wishes
    of an individual in the event they become incapacitated and there
    is no reasonable chance of recovery of normal brain function.
    Whether it is your wish to remain on life support or to abstain
    from life support, it is important to put your wishes into writing.

        The living will outlines specific medical instructions that should
    be followed once an individual reaches a state where they are no
    longer able to convey or communicate their wishes to others.
    For instance, a living will would come into effect if an individual
    falls into an irreversible coma or a vegetative state. Additionally,
    a living will specifies what types of treatment an individual wishes
    to receive once they become incapacitated with no chance of
    recovery. For example, the living will will request or decline
    cardiac resuscitation, mechanical respiration, artificial nutrition,
    blood products, and kidney dialysis, in such circumstances.  

    A power of attorney or agent can also be listed in a living will
    or in a separate medical power of attorney. The agent that is
    chosen should be trusted to make important medical decisions
    when you no longer can. This agent will be able to give consent or
    withhold consent regarding various types of care that were not listed
    in the living will or in circumstances where the decisions your made
    are unclear. As a result, it is important to clearly convey what is to
    happen in the event you become incapacitated with no chance of recovery.
    Lastly, the agent would use their best judgment as to when they
    feel it is time to release the living will to the doctors. 

    Once a living will is filled out, it is important to have it witnessed by at
    least two different witnesses. In many states the living will must
    also be notarized. These witnesses need to be of sound
    mind and body. Being of sound mind and body is important in the
    event the witnesses have to testify in court. Furthermore, the
    witnesses should be independent and unrelated parties and should
    not have any personal benefit from the document. 

    Lastly, a living will can be changed or revoked at any time.
    It is important to review or update a living will when other
    estate planning documents are being updated. A living will
    should be reviewed and updated every five to seven years.

    Please click the links, for more information regarding 
    last wills and testaments or revocable living trusts.

    For more information regarding living wills and
    other estate planning documents please contact
    David M. Frees, III at 888-573-7407.

     

  • What Should I Know About A Revocable Living Trust

    What Is A Revocable Living Trust?

    A living trust is a trust that is created while an
    individual (known as a “settlor” or “grantor”) is still living.
    This declaration or agreement of trust includes names of
    trustees, beneficiaries, describes investment assets and
    properties held by the trust, and provides the terms of the
    trust and how money is to be invested and distributed.
    This trust arrangement allows one or more people to manage
    or control property for someone else’s benefit. A living trust allows
    an individual, while they are still living, to transfer the title of
    their property to the trustee of the living trust. Once the transfer is
    complete the trustee would then be the owner of the property.
    So, as long as the trust is a revocable trust, the grantor or settlor
    can be the trustee of his or her own trust.

    Many times individuals do not understand the difference between
    a last will and testament and a living trust since they both deal with
    the distribution of property and assets. The first difference is that a
    living trust can provide more privacy then a last will and testament.
    The reason for this is that a living trust does not have to be submitted
    to probate court(unless challenged). Therefore, the details of an estate
    are more private. A last will and testament has to be submitted to
    probate court, making it a public document. Another major difference is
    that a living trust limits the involvement of probate court when distributing
    property. However, many states are regulating such distributions
    more and more.

    There are many other benefits to creating a living trust. By creating a
    living trust all assets including real estate can be managed and controlled
    as a single unit. As a result, this allows for efficient distribution of assets
    and property upon death. A living trust permits beneficiaries avoid the
    probate process. The probate process in some states can be extremely
    expensive and last for more than two years. Moreover, the probate process
    can be more costly. Therefore, creating a living trust can be very cost
    efficient when trying to avoid the probate process. In some states, assets
    in a trust cannot be reached by a state’s estate recovery program where
    assets passing under a will can be claimed. 

    In order to take full advantage of the benefits of a living trust property
    must be transferred into the trust prior to death. The individual who transfers
    the property is known as the “grantor”. The living trust that is created would
    then be considered the “grantee”. It is important to transfer the most valuable
    property into the living trust. This may include, a primary residence, business
    real estate, money market accounts, stocks and bonds, valuable collections,
    and expensive jewelry.

    As previously stated, the creator of the living trust will name the beneficiaries.
    There are three different types of living trusts beneficiaries. The three
    types are specific beneficiaries, primary beneficiaries, and
    alternate beneficiaries. Specific beneficiaries are the individuals who
    receive specific property (such as a watch, clock, or piece of real estate).
    Primary beneficiaries are individuals that receive any property that is not
    explicitly distributed to the specific beneficiaries. Lastly, alternate
    beneficiaries are individuals who receive any property in the event that
    the primary beneficiaries died before the creator of the living trust.
    Overall, the creator of the living trust is able to choose any person
    they wish as beneficiaries of their living trust.

    Lastly, a revocable living trust should be reviewed or altered if your 
    financial or life situation dramatically changes. This could mean
    purchasing a business or a new piece of real estate. In accordance
    with all other estate planning documents, a living trust should be
    reviewed and updated every five to seven years.

    Please click the links, for more information regarding last wills
    and testament
    and living trusts.

    For more information regarding revocable living trusts and
    other estate planning documents please
    contact David M. Frees, III at 888-573-7407.

  • What Are The Safest and Smartest Places to Store Your Will?

    How To Choose A Safe Place To Store Your Will.

    Once the process of executing your will is completed,
    the final and most important decision you have to make
    is where to store you will. There is only one original will,
    therefore it is very important to store it in a safe location
    where an executor can easily locate the will for
    probate and/or the distribution of your estate. 

    1.    Your Attorney’s Office 
    The first place a will can be stored is at yourattorney’s office.
    This could be a good option if 
    you are planning on staying with
    the attorney for a 
    longperiod of time. The executor of your will
    would need to
    be informed of the name and location of the
    attorney’s office.
    The attorney’s office would just need proof of
    death before
    releasing the original will. The decision to store an
    original will at an attorney’s office is safe and easy.

    2.    In Your Safe Deposit Box
    Another safe, if not the safest place to keep your original will is
    in your safe deposit box. Some people may argue that even
    though a safe deposit box is the safest place for your will it is
    not the easiest place to store it. In Pennsylvania, the executor
    is now required to give notice of the inventory by documenting
    the contents found within the safe deposit box. Then the executor
    needs to confirm that the state has been notified of the contents
    within the safe deposit box. There is a process involved for the
    executor of a will in order to obtain the will, but it is only for your

    protection making it a very safe place to store a will. And, the will
    is made quickly available to your executor. In any case,

    make sure that your executor knows where it is stored and
    the location of the safe deposit box or the safe deposit box key.

    3.    In a Fire-proof Safe in Your Home
     One of the most common places to store a will is in your own home.
    This option appeals to many people because they want to be
    able to store all of their important documents together
    in one place. However, simply storing a will in a regular

    filing cabinet or drawer is not a safe or smart option because
    of natural disasters such as flooding or fires.  Therefore,
    keeping a will in a fire-proof or water-proof safe is the best option
    if you are considering keeping a will in your residence. 

    Overall, there are many different places that a will can be safely stored.
    A will should be stored in a safe location where it cannot be effortlessly
    obtained by the wrong people or easily destroyed. Furthermore,

    it is important that the executor knows where and how to obtain
    the document in the event of your death.

    For more information regarding Estate Planning Documents please
    contact Unruh, Turner, Burke & Frees at 888-573-7407.

  • What Happens to Your Electronic Assets When You Die?

    How To Gain Access Of A Decedents Online Accounts
    and Why That is More Important Than Ever Before.

    The idea of going paperless continues to spread across
    the United States. More and more individuals have email accounts,
    use social media, and pay various bills all online. However, lawmakers
    have not caught up to the trend of “going green” or being digitally social,
    which leaves surviving loved ones struggling to gain access to these 
    various online accounts. Many estate policies of online accounts often 
    grant loved ones access to the decedent’s online accounts,
    but privacy laws prevent this from actually happening. 

        To try and combat this problem some individuals have
    started to keep a log of their online usernames and passwords.
    There are also various services such as mSecure, SecureSafe,
    and LegacyLocker that individuals are using to keep all their online
    information in one secure location. Therefore, upon the death of the individual,
    a family member would be able to access the usernames and passwords
    for their online accounts without any practical trouble. Overall,
    keeping a log or using a password safety service seems to be the most
    practical way to avoid being locked out of a decedent’s online accounts. 

    And some state laws specifically authorize executors or trustees
    to have such access. However, if a log or memo is not left behind,
    family members of a decedent have no choice but to follow online
    guidelines set forth by each individual company or state law.
    These guidelines can be stringent making it difficult to follow and gain
    access to the online accounts. For instance, many companies require
    a court order in order to gain access and other pertinent information
    regarding the account.

     Listed below is information regarding how major online 
    companies control the access of decedent’s accounts:
    1.    Google:
    a.    Will not disclose any passwords on a decedent’s account.
    b.    Will not deactivate a decedent’s account without having a court order.
    c.    It will however, provide information to loved ones if Google
    receives proof of death, i.e. death certificate, or court order.

    2.    Facebook:
    a.    Facebook will not disclose any passwords.
    b.    Will deactivate and remove an account upon a family’s request.
    c.    If notified, Facebook will “memorialize” an account.  This means
    that friends will still be able to post to a Facebook page
    but no one will ever be allowed to log into the account.
    d.    Requests a court order to release any contents of the
    account or further information. 

    3.    Yahoo:
    a.    Will not disclose any passwords.
    b.    Upon receiving a death certificate, Yahoo will deactivate
    an account.

    4.    Microsoft:
    a.    Will not disclose any passwords or transfer ownership.
    b.    Will terminate account if requested by loved ones.
    c.    Allows family members who have been permitted
    by the decedent to use their password to gain access. 
    d.    Will give contents of account, if Microsoft receives
    appropriate documentation.

    5.    Twitter:
    a.    Will not disclose any passwords.
    b.    Will only release account information if
    accompanied by a court order.
    c.    If Twitter receives a death certificate,
    they will deactivate the account.

    6.    Tumblr:
    a.    If immediate family requests the account be removed, it will do so.
    b.    Will only disclose contents of account if they receive a court order.
    c.    Will not disclose any passwords. 

    7.    LinkedIn:
    a.    Will not transfer or disclose any passwords.
    b.    If email address is known, LinkedIn will hide 
    account information from the public. 
    c. Upon specific request, LinkedIn will delete account.

    Of course, there are numerous other issues including 
    digital access to bank accounts, who owns club memberships,
    airline credit card miles and point accounts, and other related matters.

    Be sure to contact your estate planning lawyer
    to discuss these tricky issues before you complete
    you next will, trust, or memo regarding digital access.
    For more information,
    please contact David M. Frees, III at 888-573-7407.

  • How Can I Avoid Family Feuds when Family Members Have Joint Accounts with One Another

    Can Joint Accounts Cause Family Disputes and How Can They be Avoided?

    The use of joint accounts which are not coordinated with your will, trust, or
    estate planning can often cause family misunderstandings and disputes.
    To understand more about the question of joint accounts click here. 

    David M. Frees, III, JD
    610-933-8069
    [email protected]

  • When Does Your Estate Plan "Warranty" Run Out?

    When, Where, and Why to Update Your Will and Trusts

    While, lawyers cannot offer a warranty (in fact it is not permitted) on
    the effectiveness of your will, trusts, powers of attorney, and estate plan,
    there are a few important factors to consider whether or not you should
    update your estate planning documents. Here are some factors to think
    about and which can guide you as you are making the decision to update
    your documents:

    1. Have you gotten married or divorced since your last plan?
    2. Have any of your children or grandchildren gotten married
        or divorced since your last plan?
    3. Have you had children or adopted one or more children?
    4. Have you had the joy of becoming a grandparent?
    5. Have you purchased or canceled one or more life insurance policies?
    6. Have you received an inheritance?
    7. Has the economy has changed?
    8. Have you experienced a change (up or down) in your personal finances
        and personal net worth?
    9. Have any relationships with guardians, trustees, or executors
         that you have listed in your estate planning documents changed?
    10. Have you bought or sold any real estate recently?
    11. Have there been changes in the law including tax laws,
          which might affect your plan?

    Now circumstances, as we all know, can change right after you sign your
    will or trusts but we recommend, that you review your estate planning
    documents every three (3) to five (5) years. However, within that period
    of time even small changes in the law, your finances, and personal situations
    can cumulatively require changes to your will and/or other estate planning documents.

    David M. Frees, III
    Pennsylvania residents can
    call for more information on updating
    your estate plan, will, or trusts
    610-933-8069
    Click here to get a free copy of an enhanced estate planning guide

  • How is a will properly executed in Pennsylvania?

    After a person passes away, it is the charge of the executor to carry out the instructions of the will once it is filed with probate court. This generally happens as soon as the Testator (or person who wrote the will) has passed, and usually the will specifies an executor; otherwise, one is appointed by the court.

    If all goes accordingly, the will is first and quickly filed with the local, county, or municipal probate court in which the Testator died or last lived. Anyone in possession of the will may file it with probate court, but often it’s the executor who does so, as the will is often left in the care and possession of the executor.

    Some states have laws that demand that anyone in possession of a decedent’s will file it with probate court, so check with a probate attorney to discuss the laws in Pennsylvania.

    Listed beneficiaries from a will don’t receive their assets from the estate until after probate has ended; before that happens, the executor must make an inventory of all the assets and the bills of the estate, such as taxes and debts, must first be paid.

    How long the probate period takes depends on several things, including:

    • the size of the estate;
    • how many outstanding bills there are; and
    • whether or not anyone files a claim against the estate or disputes any aspects of the will.

    Consult a Pennsylvania Attorney About Your Will and Estate

    Whether it’s collaborating with your tax advisors, assisting with the filing of Federal Estate and Gift Tax Returns and Pennsylvania Inheritance Tax Returns, or providing services to facilitate the resolution of estate and trust administrations, our firm is dedicated to providing unparalleled and uncompromised service to our clients. Contact a Pennsylvania probate and estate attorney for more information on how the Law Offices of Unruh, Turner, Burke & Frees can help you. Call us today – 1-610-933-8069.

    References:

    http://info.legalzoom.com/soon-wills-executed-after-death-4569.html

  • Which is Better The Will or Revocable Living Trust? The probate vs. non probate debate continues.

    In Pennsylvania, the probate system can be simple and trusts are used less frequently than in other states.  There is no set answer to the question of using a will or a trust. 

      However, this article has a good overview of the trust vs. will debate.

    For more information about trusts and wills in Pennsylvania read below.

    In general, we recommend using a trust when:

    1) You are disinheriting an heir since it is harder to challenge a trust under Pennsylvania law

    2) You own property in multiple jurisdictions and want to avoid multiple probates

    3) You reside in a state with an expensive or complex probate system

    4) You have a high risk job and do not want assets such as life insurance to be reachable by creditors of your estate

    5) You have a special needs situtation and need to make lifetime gifts and have protection after your death

    6) You are elderly and want a trust company, bank trust department or trusted person to manage your assets during your lifetime,

    7) You are subject to federal estate taxes and want to move assets such as homes, investments, and life insurance outside of your estate (these trusts are irrevocable)

    8) You want to use the trust laws of states such as Delaware, Nevada, Alaska or others that permit asset protection planning through trusts.

    By:  David Frees Esquire  610-933-8069


    David Frees practices law with Unruh, Turner, Burke and Frees
    He maintains law offices in Paoli, Phoenixville, and West Chester Pennsylvania which serve many communities including: Exton, West Chester, Malvern, Phoenixville, Chester Springs, Devon, Wayne, Berwyn, Ardmore, Downingtown and others.

  • If we have a child named as a beneficiary of an account or POD (Pay On Death) and that child goes into bankruptcy, can our assets be taken away?

    As long as the child is a mere beneficiary, or POD, he or she is not the owner of the account.  No lifetime benefit has been conveyed, and in the event the child is sued, or declares bankruptcy, your assets will not be implicated.  However, this raises to important issues.  First, confirm that your child is not a co owner of the accounts.  Secondly, consider putting these assets into a living trust or a trust at your death, so that your daughter doesn't end up losing them.

    Finally, these assets will remain in your taxable estate for both federal estate tax purposes and for Pennsylvanina inheritance tax purposes.

    David M. Frees III, Esquire
    Call 610-933-8069  for a consultation on estate planning  or asset protection planning

  • Will I save estate taxes by creating a revocable trust?

    Merely creating the revocable trust will not save estate tax and in most states will not save on on state inheritance taxes. However, your situation may lend itself to using estate tax savings techniques that can be incorporated into the trust. Also, irrevocable trusts can be used to eliminate estate and often inheritance taxes.

  • Do I give up control to my trustee if I create a revocable or living trust?

    No. As long as the trust is revocable and you are competent, you can be the trustee and can retain  full control and even the ability to terminate the trust.  However, thesse very powers cause the assets to be available to your creditors if you are divorced or sued, and they remain taxable.

  • Can my spouse and I do one revocable trust for both of us?

    In Pennyslvania, husbands and wives usually have their own indivdual trusts and must carefully divide their property to achieve maximum estate tax planning, if that is desireable. Joint revocable trusts are common in community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). For complex tax reasons, joint trusts usually are not recommended for residents of states other than community property states.

  • What is a pour-over will?

    A pour- over will is used when you have a revocable living trust. A pour-over will states that if I die and I have things outside of the trust in my name that those things such as a house, a pension, or perhaps an inheritance, will be put by the executor into the trust and lets the trustee administer and distribute it.

  • Is a safety deposit box frozen at death under Pennsylvania law?

    Pennsylvania law provides that a safe deposit box is frozen at death except for certain exceptions.
    And, while many people are afraid to leave a will in their safe deposit box, that might be the very best place.Heirs will find it.  It doesn't get destruyed by accident or by a house fire, and the exceptions allow the executor to get the will out of the safe deposit box.

    First, a jointly held box owbed by a husband and wife is not frozen.  Also, executors can remove cemetary deeds and the will.


    However, if the box was not titled in joint names between spouses, then once the will or cemetery deed is removed, a freeze will be put on the box until it is inventoried according to state rules. The inventory is made part of the inheritance tax division's records and the contents are taxable for inheritance tax purposes.