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As a result, no probate assets are available for
distribution to the trust, and no probate assets are
available for allocation to the charitable gift or bequest
to the Millbrook United Methodist Church.
In addition, as mentioned above, the total deductions
from the probate estate exceed the gross probate assets by
approximately $100,000. This shortfall in the assets of
the probate estate must be satisfied from the trust
property, either as an "insufficiency" pursuant to
paragraph 1.03 of the will, and paragraph 6.02B of the
trust agreement, or as a recovery from the trust under
section 2207B(a), on the ground that the value of property
is included in the gross estate by reason of section 2036.
If the shortfall is treated as an insufficiency under
paragraph 1.03 of decedent's will, then the trust agreement
governs whether death taxes will burden that amount. On
the other hand, if the executrix can recover the shortfall
from the trust under section 2207B(a), then the right to
such recovery would be another asset of the residuary
estate, and no resort to the trust agreement would be
necessary.
It is unnecessary for us to decide, in this case,
which of the two applies because the result would be the
same whichever applies. As discussed above, the trust
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