Estate of Helen Christiansen, Deceased, Christine Christiansen Hamilton, Personal Representative - Page 37




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          life estate or a term of years or an annuity is not severable as            
          the term is used for purposes of determining whether a disclaimer           
          is a qualified disclaimer under section 2518.  Sec. 25.2518-3(d),           
          Example (2), Gift Tax Regs.                                                 
               In the dissenting portion of her opinion, Judge Kroupa                 
          argues that the foundation’s annuity interest in the trust and              
          Hamilton’s remainder interest in the trust are independent                  
          because the foundation can do nothing to affect the contingent              
          remainder and Hamilton can do nothing to affect the annuity.                
          Control by the “holder” of the beneficial interest is not                   
          relevant; the holder of the income interest in a trust and the              
          holder of the remainder interest in that trust generally cannot             
          affect each other’s interest; yet those interests are not                   
          severable.                                                                  
               Although it is possible for the trustee of a trust to affect           
          either the income interest or the remainder through investment              
          decisions, the trustee has a fiduciary duty to balance the                  
          interest of the income beneficiary with that of the remainderman            
          in making investment decisions.  During the life of the income              
          beneficiary or the term of years, the distribution of the income            
          (usually cash dividends and/or interest) to the income                      
          beneficiary does not diminish the value of the remainder                    
          interest.  Similarly, the gain or loss that might accrue in the             
          corpus is not affected by the income earned and distributed to              







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Last modified: March 27, 2008