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04-3800 Lurie v. CIR (63501)

By: dmc-admin//October 3, 2005

04-3800 Lurie v. CIR (63501)

By: dmc-admin//October 3, 2005

“It is clear that the decedent did not anticipate that the Notice Trusts would be included in his gross estate, and it is very likely that the decedent would have laid out his estate plan differently had he or his attorneys considered this possibility. We cannot, however, rewrite the decedent’s will or trust agreement to give effect to what the decedent would have done. Under Illinois law and the law of this circuit, the intent that we seek to enforce is not that presumed to have been in the decedent’s mind, but rather the intent that is expressed in the four corners of the documents in question. See Smith v. United States, 801 F.2d 975, 977 (7th Cir. 1986) (quotations and citations omitted) (interpreting Illinois law); Weir v. Leafgreen, 186 N.E.2d 293, 296 (Ill. 1962).

“Finally, we find that the Tax Court correctly determined that the legal costs associated with the audit and this litigation should be paid from the assets of the Revocable Trust. Again, section 4.1 of the Revocable Trust Agreement directs that if the assets of the residuary probate estate are insufficient, then the remaining administration costs of the estate are to be paid from the assets of the Revocable Trust. Since legal costs are considered administration costs under Illinois law, see In re Rolley, 520 N.E.2d 302, 303 (Ill. 1998) (describing legal fees as costs of administration of an estate); In re Desisles’ Estate, 208 N.E.2d 122, 125 (Ill. App. Ct.1965) (costs of administration include legal fees), the Tax Court was correct in directing the legal costs associated with this litigation to be paid out of the Revocable Trust.”


Appeal from the United States Tax Court, Williams, J.


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