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ESTATE OF KORDA HERSKOVITS, A/K/A KORDA H. CAPLAN, Deceased

ESTATE OF KORDA HERSKOVITS, A/K/A KORDA H. CAPLAN, Deceased. (1270G/11) — This is an uncontested proceeding captioned as a "Construction and Reformation" brought by Allen Herskovitz and Jean Lindenbaum, as co-executors of the will of Korda Herkovits. The will creates a trust of one-half the residuary estate. Petitioners ask the court to "reform" the will to reduce the stated trust annuity amount so as to qualify the trust for an estate tax charitable deduction.

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ESTATE OF KORDA HERSKOVITS, A/K/A KORDA H. CAPLAN, Deceased. (1270G/11) — This is an uncontested proceeding captioned as a “Construction and Reformation” brought by Allen Herskovitz and Jean Lindenbaum, as co-executors of the will of Korda Herkovits. The will creates a trust of one-half the residuary estate. Petitioners ask the court to “reform” the will to reduce the stated trust annuity amount so as to qualify the trust for an estate tax charitable deduction.

Article FOURTH (a) (2) of the will provides for payment to decedent’s son of an annuity in “an amount… equal to SEVEN PERCENT (7 percent) of the initial net fair market value [of the trust]…provided, however, that said percentage shall not exceed the maximum percentage that would result in the trust qualifying as a charitable remainder annuity trust within the meaning of Section 664(d) (1) of the [Internal Revenue] Code.” The remainder is payable to a tax qualified charity upon the death of decedent’s son. Based on the age of the annuitant and the applicable discount rate, a seven percent annuity would disqualify the trust as a charitable remainder annuity trust under the “five percent corpus exhaustion rule” (see Treasury Regulation §20.2055-2[b][1]; Rev Rul 70-452, 1970-2 CB 199). Petitioner seeks a “reformation” of the will to provide instead for a five percent annuity amount, which would satisfy the rule.

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