- 11 - 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 Code sec. 750 (West 1956) (repealed).1 Thus, if a decedent does not make adequate provision for the payment of debts, funds otherwise distributable to legatees must be used to satisfy creditors.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did adequately substantiate that, at the time of Earl's death, 1 California Probate Code sec. 21406 provides that repealed sections concerning abatement continue in effect for legacies made prior to July 1, 1989.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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011