Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 39

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             property for life, payable annually or at more frequent                  
             intervals, and no person had a power to appoint any part of              
             the property to any person other than the surviving spouse.              
             Thus, in each case the court held that the surviving spouse              
             had a qualifying interest for life in the property held by               
             the “QTIP trust”, as required by section 2056(b)(7)(B)(i)                
             (II), and that the decedent’s estate was entitled to                     
             include the value of the property held by the “QTIP trust”               
             in the marital deduction.                                                
                  The tacit premise of petitioner’s second argument is                
             that we should test the validity of the QTIP election based              
             upon the interest that Mrs. Rapp received under the order                
             of the probate court reforming the decedent’s 1986 will.                 
             However, as discussed above, we are not bound by the order               
             of the probate court in determining what interest in the                 
             trust passed from the decedent to Mrs. Rapp under                        
             California law.  Commissioner v. Estate of Bosch, 387 U.S.               
             at 465.  In fact, as discussed in the prior section of this              
             opinion, we found that the order of the probate court was                
             not in accordance with the decedent’s intent as determined               
             from the language used in the decedent’s 1986 will and,                  
             thus, was not in accordance with California law.                         
             Accordingly, we found that Mrs. Rapp’s interest in the                   







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