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4. The Executor may (a) elect to use the costs of
administration of my estate as deductions for federal estate
tax purposes or federal income tax purposes, and (b) elect
to use date of death values or optional values for federal
estate tax purposes * * * [Emphasis added.]
The will gives the executor discretion as to how to account for
the administration expenses. This provision bolsters
petitioner's argument, because it clarifies the idea that it was
to be determined after death whether any administration expenses
would be claimed under section 2053. We conclude that the will
does not require the residuary estate to be diminished by an
amount equal to the administration expenses that were not in fact
claimed or allowed under section 2053 and were instead properly
deducted from estate income.
Petitioner's motion for summary judgment will be granted in
part, in that the $90,000 bequest was properly included in
calculating the marital share, and in that the language of the
will does not require that administration expenses be subtracted
from the residuary estate thus decreasing the marital deduction.
Respondent's motion for partial summary judgment will accordingly
be denied in part. The balance of the case will be reserved for
future resolution.
An appropriate order
will be issued.
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Last modified: May 25, 2011