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the one set forth in section 20.2056(b)-5(f)(7), Estate Tax
Regs.: “An interest passing in trust fails to satisfy the
condition * * * , that the spouse be entitled to all the income,
to the extent that the income is required to be accumulated in
whole or in part or may be accumulated in the discretion of any
person other than the surviving spouse”. We therefore must
decide, in light of State law, whether the Item V trust, as
affected by the disclaimers, authorizes accumulation or requires
full annual distribution.
Ga. Code Ann. section 53-12-190, upon which the estate
relies, provides in relevant part:
53-12-190. Trustee Duties.
(a) The duties contained in this chapter are
applicable except as otherwise provided in the trust
instrument, and are in addition to and not in
limitation of the common law duties of the trustee,
except to the extent inconsistent therewith.
* * * * * * *
(c) The trustee shall distribute all net income
derived from the trust at least annually.
Our inquiry thus becomes whether the 1970 will “otherwise
provide[s]” within the meaning of the statute. Unfortunately,
research has revealed no opinions from courts located within the
State of Georgia which address subsection (c) of Ga. Code Ann.
section 53-12-190 and its relationship to subsection (a).
However, this statute is the successor to Ga. Code Ann. sections
108-445 and 108-446 (Code 1933), which were construed by the U.S.
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