FBAR and Form 8938 Obligations of Estates, Trusts and their Fiduciaries

The guide explains which estates, trusts, fiduciaries and heirs must report foreign accounts on the FBAR and on Form 8938, how a death changes the duty, and how the penalties reach the fiduciary personally.

By Caroline Esche Ashford, PhD, JD · Updated in September 2026

In brief.

The FBAR (FinCEN Form 114) is due from each US person, a trust or estate formed under US law included, with a financial interest in or signature authority over foreign accounts whose aggregate maximum value exceeded USD 10,000 in the year (31 C.F.R. § 1010.350).
An executor or trustee whose name is on the account, or who can instruct the bank, files a personal report in addition to any report of the estate or trust; the only relief runs to a trust beneficiary whose trust, trustee or agent is a US person that reports the accounts.
Form 8938 (I.R.C. § 6038D) follows the person whose return carries the income: no one files it on the basis of signature authority, and a domestic estate never files it.
In universal-succession countries such as Germany, France and Switzerland the heirs acquire the decedent’s account at death; under English, Irish and Ontario law title passes to the personal representative; in Austria the estate holds it until the court hands it to the heirs.
Winning a treaty tie-breaker removes the Form 8938 duty for the period covered but leaves the FBAR in place (Treas. Reg. § 1.6038D-2(e)). FBAR penalties survive death, and an executor who distributes with notice of the claim is personally liable (31 U.S.C. § 3713(b)).

The issue

Two federal regimes require the disclosure of foreign accounts, and they share little beyond their subject. The FBAR, a Bank Secrecy Act report, attaches to legal title and to the power to direct an account, so an executor, a trustee or a trust officer reports money belonging to someone else. Form 8938, an income tax form, attaches to the person whose return must reflect the asset and reaches assets the FBAR does not. One report never covers everyone connected with an account: each US person with title, authority or an attributed interest files separately.

Who the guide is for

The guide is written for executors and administrators of estates with accounts abroad, individual and corporate trustees, trust company officers, US heirs of decedents who lived in Europe or Canada, and their attorneys and tax advisors. Its analysis of succession law covers twelve partner countries in Europe and Canada.

Title, authority and the separate report of each fiduciary

The FBAR definitions are applied person by person. A trustee whose name stands on the account has a financial interest even though the account is held for others (31 C.F.R. § 1010.350(e)(1)); an executor whom the bank accepts on the strength of letters or a grant has signature authority. The officer exceptions do not reach state-chartered or private trust companies, and the filing deferral to April 15, 2027 under FIN-2025-NTC3 does not cover trust accounts.

Form 8938 and the domestic estate

Form 8938 is attached to the income tax return when specified foreign financial assets exceed thresholds that begin at USD 50,000 on the last day of the year or USD 75,000 at any time during it. A domestic trust files as a specified domestic entity when a specified person is a current beneficiary, unless a qualifying bank or registered institution is trustee or the trust is a grantor trust (Treas. Reg. § 1.6038D-6). An estate is never a specified domestic entity, whatever its foreign holdings.

Succession law decides who holds the account

Because the FBAR follows title, the foreign succession law determines who reports for the year of death. Under universal succession a US heir owns a share of the account from the moment of death and reports the account even while a Testamentsvollstrecker or notaire administers it. Under the English, Irish and Ontario model the beneficiary reports nothing before distribution, while a US personal representative reports as owner. The guide also maps the document each country’s banks require before dealing with an heir or fiduciary, since its acceptance is when signature authority arises.

Penalties, survival and correction

The non-willful FBAR penalty is assessed per report, up to USD 16,536 (Bittner v. United States, 2023); a willful violation, which includes reckless conduct, can cost USD 165,353 or half of the account balance, whichever is greater, for each account and year. The discharge procedures of I.R.C. §§ 6905 and 2204 do not reach these penalties. The guide sets out the correction routes as they stood in September 2026: late reports with a reasoned explanation, the streamlined procedures, which estates may use, the delinquent international information return procedures and the Voluntary Disclosure Practice.

The questions the guide answers

Which US persons file an FBAR for an account held by an estate or trust, and does the entity’s report relieve anyone else?
When does an executor, trustee or trust officer report on the basis of legal title, and when on the basis of signature authority?
Which trusts file Form 8938, and why does a domestic estate never file it?
How do universal succession, the personal-representative model and the Austrian procedure change the position of a US heir or fiduciary?
How does an executor guard against personal liability for the decedent’s unfiled reports before distributing, and which correction route fits?

Contents of the guide

Part I. Two disclosure regimes
Part II. The FBAR filer: United States person, financial interest and signature authority
Part III. Estates, trusts and various kinds of fiduciaries under the FBAR
Part IV. Form 8938: specified persons, specified assets and the domestic trust as a specified domestic entity
Part V. The partner-country succession laws: who holds title to the decedent’s account
Part VI. The income tax treaties and the inter-governmental agreements
Part VII. Penalties: amounts, willfulness, proportionality and time limits
Part VIII. Penalties after death and the fiduciary’s personal exposure
Part IX. Correcting past omissions
Part X. The account inventory and the compliance calendar
Part XI. A worked example
Part XII. Practice points

The firm builds the account inventory for estates and trusts with foreign accounts, determines for each US person whether a report is owed on the basis of title, authority or attribution, and prepares the FBARs and Forms 8938 of the estate, the trust and the fiduciaries. Where reports were missed, it assesses the record and completes the correction before anything is distributed. Title under the foreign succession law is confirmed with the notaries, attorneys and banks that administer the estate abroad.

Amounts, deadlines and procedures as of September 2026, as stated in the guide.

This page is general information as of the date stated and is not legal or tax advice. The application of the rules and conventions described depends on the facts of each case.