Estate of Marion P. Bradford, Deceased, Lizette L. Pryor, Executrix - Page 33

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             attributable to his death are to be paid from the residuary              
             probate estate without apportionment and, to the extent                  
             that the assets of the residuary estate are insufficient,                
             from the trust property.  Thus, the decedent's will                      
             provides a method of apportionment that is different from                
             the method prescribed by N.C. Gen. Stat. sec. 28A-27-2(a),               
             under which death taxes are to be apportioned "among all                 
             persons interested in the estate".  Accordingly, we agree                
             with respondent that the decedent opted out of the method                
             of apportionment found in chapter 28A, article 27 of the                 
             General Statutes of North Carolina, including the exception              
             applicable to charitable bequests in N.C. Gen. Stat. sec.                
             28A-27-5(a).  See Estate of Fagan v. Commissioner, T.C.                  
             Memo. 1999-46; see also Estate of Fine v. Commissioner, 90               
             T.C. 1068 (1988), affd. without published opinion 885 F.2d               
             879 (11th Cir. 1989); Estate of Miller v. Commissioner,                  
             T.C. Memo. 1998-416, affd. without published opinion 209                 
             F.3d 720 (5th Cir. 2000); Estate of McKay v. Commissioner,               
             T.C. Memo. 1994-362.                                                     
                  The method of apportionment adopted by the decedent in              
             his will controls.  See N.C. Gen. Stat. sec. 28A-27-2(b).                
             Under that method, the death taxes and other bequests,                   
             debts, and expenses of the decedent that were paid by the                
             decedent's residuary estate exhausted the residuary estate.              

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