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purposes of section 2040(a), attributable to Rory because Earl's
will provided for a bequest of $150,000 to be held in trust for
Rory. Respondent disagrees with this contention.
To resolve this issue we must first determine what, if
anything, of value passed to Rory pursuant to Earl's will. Under
California law, a legacy is ineffective to the extent there are
insufficient assets to fund it. Where this occurs, the legacy is
said to abate. See In re Buck's Estate, 32 Cal. 2d 372, 376
(1948). California Probate Code section 750 provides that
creditors' claims have priority over legacies. Cal. Prob. Code
sec. 750 (West 1956) (repealed).1 Thus, if a decedent does not
make adequate provision for the payment of debts, funds otherwise
distributable to legatees must be used to satisfy creditors. Id.
Petitioner bears the burden of substantiating consideration
relating to the Joint Tenancy Account. Sec. 6001; New Colonial
Ice Co. v. Commissioner, 292 U.S. 435, 440 (1934); Hradesky v.
Commissioner, 65 T.C. 87, 89-90 (1975), affd. per curium 540 F.2d
821 (5th Cir. 1976). Petitioner, in its attempt to establish the
existence and value of Earl's assets, relied on vague
unpersuasive testimony and inadequate documentation. Petitioner
did adequately substantiate that, at the time of Earl's death,
1 California Probate Code sec. 21406 provides that repealed
sections concerning abatement continue in effect for legacies
made prior to July 1, 1989. Cal. Prob. Code sec. 21406 (West
1991).
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