Academic journal article Journal of Accountancy

Do-It-Yourself Will Succeeds in Spite of Itself

Academic journal article Journal of Accountancy

Do-It-Yourself Will Succeeds in Spite of Itself

Article excerpt

The Ninth Circuit Court of Appeals recently upheld a district court's decision that a self-prepared will's bequest qualified for the marital deduction, even though its literal wording created a disqualifying terminable interest. The courts found the decedent's handwritten notes of planned revisions to the will and an article he saved on the deduction demonstrated he intended for his estate to claim the deduction.

When Tony Sowder died in 1995, he was survived by his wife, Marie Sowder, and three adult children. Sowder had prepared his own will in 1983, leaving his children a total of $600,000-the amount that could be passed tax-free to a non-spouse at the time. The will required that the remainder pass to Marie "if she survives me, and if she does not survive me, or dies before my estate is distributed to her, to my issue me surviving, in equal shares per stirpes." Later handwritten notes to the will by Sowder did not contain the language "if she does not survive me, or dies before my estate is distributed to her."

Code section 2056(b) denies the marital deduction for terminable interests, which include conditioning a bequest on the spouse's survival until distribution. Under [section] 2056(b)(3), however, that rule does not apply where the period is limited to not more than six months and the spouse in fact survives such period. In the instant case there was no limitation of the period of survival. …

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