Estate of Bert B. Rapp, Deceased, Richard L. Rapp, Executor - Page 40

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             trust was the interest described by the decedent’s 1986                  
             will, as originally drafted.  Under the decedent’s 1986                  
             will, Mrs. Rapp did not have the right to any income from                
             the trust property.  She was entitled to receive income                  
             from the trust only if the cotrustees determined in their                
             “absolute discretion” that she needed funds “for her proper              
             health, education and support.”                                          
                  In this case, therefore, it does not matter when the                
             validity of the QTIP election is tested, as of the date of               
             the decedent’s death or as of the date of the election.  At              
             no time did Mrs. Rapp have a qualifying income interest for              
             life in the trust, as defined by section 2056(b)(7)(B)(ii),              
             which passed from the decedent, as required by section                   
             2056(b)(7)(B)(i)(I), and at no time did the trust property               
             in this case qualify as QTIP.                                            

             The Order of the Probate Court Is a "Qualified Disclaimer"               
             Under Section 2518(b)                                                    
                  Petitioner's third argument is that the order of the                
             probate court is, in effect, a "qualified disclaimer" as                 
             defined by section 2518(b).  Petitioner argues that the                  
             trustees and the guardian ad litem "consented" to the                    
             probate court's order reforming the decedent's will and, in              
             effect, disclaimed "the right and/or power of the Trustees               







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