Estate of Bonnie J. Liston Harden, Deceased, David J. Kotler, Executor - Page 11

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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          sec. 750 (West 1956) (repealed).1  Thus, if a decedent does not             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               1  California Probate Code sec. 21406 provides that repealed           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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