- 49 -
Except in the case of a trust which is revocable by
such person during lifetime, a power conferred upon a
person in his or her capacity as trustee of an express
trust to make discretionary distribution of either
principal or income to himself or herself or to make
discretionary allocations in his or her own favor of
receipts or expenses as between principal and income,
cannot be exercised by him or her. * * * If there is
no trustee qualified to execute the power, its
execution devolves on the supreme court or the
surrogate’s court, except that if the power is created
by will, its execution devolves on the surrogate’s
court having jurisdiction of the estate of the donor of
the power.
The trust in the 1993 will did not give Bar discretionary power
to make distributions of income or principal to himself or
allocations in his own favor. Even if it did, this power would
devolve on the Surrogate’s Court. Furthermore, N.Y. EPTL section
10-10.1 does not give Bar or the Surrogate’s Court the power to
pay Jo any more than she needs.9
We conclude that the interest in the trust created by the
1993 will does not qualify for the estate tax marital deduction
as “qualified terminable interest property” within the meaning of
section 2056(b)(7). In reaching our holding herein, we have
considered all arguments made by the parties, and to the extent
not mentioned above, we find them to be irrelevant or without
merit.
9 Even if N.Y. Est. Powers & Trusts Law sec. 10-10.1
(McKinney 2003) required Bar to pay all the income of the trust
to Jo, it does not require him to pay it to her annually or at
more frequent intervals.
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