N.Y. Estates, Powers & Trusts Law § 2-1.8: Apportionment of federal and state estate or other death taxes;

§ 2-1.8 Apportionment of federal and state estate or other death taxes;

fiduciary to collect taxes from property taxed and transferees

thereof

(a) Whenever it appears in any appropriate action or proceeding that a

fiduciary has paid or may be required to pay an estate or other death

tax, under the law of this state or of any other jurisdiction, with

respect to any property required to be included in the gross tax estate

of a decedent under the provisions of any such law (hereinafter called

"the tax"), the amount of the tax, except in a case where a testator

otherwise directs in his will, and except where by any instrument other

than a will (hereinafter called a "non-testamentary instrument")

direction is given for apportionment within the fund of taxes assessed

upon the specific fund dealt with in such non-testamentary instrument,

shall be equitably apportioned among the persons interested in the gross

tax estate, whether residents or non-residents of this state, to whom

such property is disposed of or to whom any benefit therein accrues

(hereinafter called "the persons benefited") in accordance with the

rules of apportionment herein set forth, and the persons benefited shall

contribute the amounts apportioned against them.

(b) Unless otherwise provided, when a disposition is made by which any

person is given an interest in income or an estate for years or for life

or other temporary interest in any property or fund, the tax

apportionable against such temporary interest and the remainder limited

thereon is chargeable against and payable out of the principal of such

property or fund without apportionment between such temporary interest

and remainder. The provisions of this paragraph apply although the

holder of the temporary interest has rights in the principal, but do not

apply to a common law annuity.

(c) Unless otherwise provided in the will or non-testamentary

instrument, and subject to paragraph (d-1) of this section:

(1) The tax shall be apportioned among the persons benefited in the

proportion that the value of the property or interest received by each

such person benefited bears to the total value of the property and

interest received by all persons benefited, the values as finally

determined in the respective tax proceedings being the values to be used

as the basis for apportionment of the respective taxes.

(2) Any exemption or deduction allowed under the law imposing the tax

by reason of the relationship of any person to the decedent, the fact

that the property consists of life insurance proceeds or the charitable

purposes of the gift shall inure to the benefit of the person bearing

such relationship or receiving such insurance proceeds or charitable

gift, as the case may be.

(3) Any deduction for property previously taxed and any credit for

gift taxes paid by the decedent shall inure to the benefit of all

persons benefited and the tax to be apportioned shall be the tax after

allowance of such deduction or credit.

(4) Any interest resulting from the late payment of the tax shall be

apportioned in the same manner as the tax and shall be charged wholly to

principal.

(5) Any discount allowed for prepayment of the tax shall be credited

wholly to the principal of the funds contributing the moneys used for

prepayment in proportion to the contribution made.

(d) Subject to subparagraphs (1), (2) and (3) of this paragraph, any

direction as to apportionment or non-apportionment of the tax, whether

contained in a will or a non-testamentary instrument, relates only to

the property passing thereunder, unless such will or instrument provides

otherwise.

(1) Any such direction in a will which is later in date than a prior

non-testamentary instrument and which contains a contrary direction

shall govern provided that the later will specifically refers to the

direction in such prior instrument.

(2) Any such direction in a non-testamentary instrument which is later

in date than a prior will or non-testamentary instrument and which

contains a contrary direction shall govern provided that the later

instrument specifically refers to the direction in such prior will or

instrument.

(3) Any such direction provided in a non-testamentary instrument only

relates to the payment of the tax from the property passing thereunder

and such direction shall not serve to exonerate such non-testamentary

property from the payment of its proportionate share of the tax, even if

otherwise directed in that non-testamentary instrument.

(d-1)(1)(A) If any part of the gross tax estate consists of property

the value of which is includible in the gross tax estate by reason of

§2044 of the Internal Revenue Code of 1986 as from time to time amended,

the decedent's estate shall be entitled to recover from the person

receiving the property the amount by which the total tax under article

twenty-six of the tax law which has been paid exceeds the total tax

under such article which would have been payable if the value of such

property had not been included in the gross tax estate.

(B) Clause (A) of this subparagraph shall not apply if the decedent

specifically directs otherwise by will.

(2) For the purposes of this paragraph, if there is more than one

person receiving the property, the right of recovery shall be against

each such person.

(3) In the case of penalties and interest attributable to additional

taxes described in subparagraph (1) of this paragraph, rules similar to

subparagraphs (1) and (2) of this paragraph shall apply.

(e) In all cases in which any property required to be included in the

gross tax estate does not come into the possession of the fiduciary, he

is authorized to, and shall recover from the persons benefited or from

any person in possession of such property the ratable amounts of the tax

and any interest payable by the persons benefited. The surrogate may

direct the payment thereof to the fiduciary and may charge such payments

against the interests of the persons benefited in any assets in the

possession of the fiduciary or any other person. If the fiduciary cannot

recover the amount of the tax and interest apportioned against a person

benefited, such amount may be charged in such manner as the surrogate

determines.

(f) No fiduciary is required to pay over or distribute to any person

other than the fiduciary charged with the duty to collect and pay the

tax any fund or property with respect to which the tax is or may be

imposed until the amount of the tax apportioned or which may be

apportioned against such fund or property and any interest due from the

persons entitled thereto is paid or, where the tax has not been

determined or apportionment made, unless and until adequate security for

such payment is furnished to the fiduciary making such payment or

distribution.

(g) The surrogate shall make such preliminary, intermediate or final

decrees or orders in the proceeding, as he shall deem advisable,

tentatively or finally apportioning the tax and any interest, directing

the fiduciary to collect the apportioned amounts from the property or

interests in his possession of any persons against whom such

apportionment has been made and directing all other persons against whom

the tax and any interest are apportioned or from whom any part of the

tax and any interest may be recovered to make payment of such

apportioned amounts to such fiduciary; and if it is ascertained in such

proceeding that the property in the possession of the fiduciary,

otherwise payable to a person liable for any part of the tax and

interest, is insufficient to discharge the liability of such person, the

surrogate may direct that the balance of the apportioned amount due

shall be paid to the fiduciary by such other person. If, in the course

of the proceeding, it is ascertained that more than the ratable amount

of the tax and interest due from any person has been paid by him or in

his behalf the surrogate may direct an appropriate reimbursement of the

overpayment.

(h) If the surrogate apportions any part of the tax against any person

interested in non-testamentary property or apportions the tax among the

respective interests created by any non-testamentary instrument, he may,

in his discretion, assess against such property or interests, an

equitable share of the expense in connection with the determination of

the tax and the apportionment thereof. Whenever an attorney renders

services to the estate or to its personal representative resulting in

the exclusion from the gross taxable estate of any non-testamentary

property or interests created by any non-testamentary instrument, the

surrogate may, in his discretion, assess against such property or

interests an equitable share of the compensation for such legal services

rendered to the estate or to its personal representative in proportion

to the benefit received by such property or interests from such

services, unless the decedent's will or the non-testamentary instrument

contains a direction that no portion of the tax shall be apportioned

against such non-testamentary property or against interests created by

any non-testamentary instrument. The surrogate may retain jurisdiction

of any proceeding until the purposes of this section have been

accomplished.