Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 28

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                  In any event, we do not accept petitioner's assertion               
             that the order of the California probate court is "a                     
             decision of a local court upon the merits in an adversary                
             proceeding following a genuine and active contest."  Sec.                
             20.2056(e)-2(d)(2), Estate Tax Regs.  To the contrary, the               
             record of the hearing before the probate court shows that                
             the court granted Mrs. Rapp's petition after ascertaining                
             the opinion of the guardian ad litem that his clients "will              
             not be adversely affected by this petition" and determining              
             that no objection had been filed to the petition.  No                    
             witnesses were called to testify, and no documents were                  
             introduced into evidence.  We find nothing in the record of              
             this case to show that the probate court "passed upon the                
             facts upon which deductibility of the property interests                 
             depends."  Sec. 20.2056(e)-2(d)(2), Estate Tax Regs.                     
             Rather, the order of the probate court appears to have been              
             "rendered by consent" such that it "will not necessarily                 
             be accepted as a bona fide evaluation of the rights of the               
             spouse."  Sec. 20.2056(e)-2(d)(2), Estate Tax Regs.  Thus,               
             we reject petitioner's assertion that the order of the                   
             probate court must be presumed to be a bona fide                         
             recognition of Mrs. Rapp's enforceable rights under                      
             California law.  We proceed to review California law                     







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