IRS reads “it is my desire” in decedent’s will to be a specific bequest rather than precatory, causing a reduction in the marital deduction

In PLR 1126030, the language “it is my desire” in Article III of Decedent’s Will was determined by the IRS to be given mandatory construction as passing the described property interests to the Decedent’s children as specific bequests, thereby reducing the marital deduction under § 2056 and increasing the taxable estate, taking into consideration the rules of abatement under Statute in regard to Decedent’s debts and obligations.

The Article in question was entitled “statement of intent” and states as follows:  To the extent that I own any equity interest at my death in any of the following closely held investments, i.e. [Assets], it is my desire that such equity interests be retained and that each of them be distributed so that all such equity interests are ultimately owned in equal shares by [Children]. If any of them are deceased, it is my desire that the decedent’s share of such equity interests be owned equally by such decedent’s children.

Applying the relevant state law, the TAM says the language is mandatory. It stressed that Article III is an instruction to the Executor. In other articles where Decedent intended Executor to have discretion, the language clearly reflected that.

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