77-2108. Apportionment and proration of tax; basis.

Whenever it appears upon any accounting or in any appropriate action or proceeding that a personal representative, executor, administrator, trustee, or other person acting in a fiduciary capacity has paid or may be required to pay any transfer tax levied or assessed under sections 77-2101 to 77-2116 or under the provisions of any federal estate or generation-skipping transfer tax law heretofore or hereafter enacted upon or with respect to any property required to be included in the gross estate of a decedent or total amount of generation-skipping transfer under the provisions of any such law, the amount of the tax so paid or payable, except as otherwise directed in the decedent's will or except in a case when by written instrument executed inter vivos direction is given for apportionment within the fund of the taxes assessed upon the specific fund dealt with in such inter vivos instrument, shall be equitably apportioned and prorated among the persons interested in the estate or transfer. Such apportionment and proration shall be made in the proportion as near as may be that the value of the property, interest, or benefit of each such person bears to the total value of the property, interests, or benefits received by all such persons interested in the estate or transfer, except that in making such proration, allowances shall be made for any exemptions granted by the law imposing the tax and for any deductions, including any marital deduction, allowed by such law for the purpose of arriving at the value of the net estate or transfer. In cases when a trust is created or other provision made by which any person is given an interest in income or an estate for years or for life or any other temporary interest in any property or fund, the tax on both such temporary interest and on the remainder thereafter shall be charged against and be paid out of the corpus of such property or fund without apportionment between remainders and temporary estates.

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Annotations

Estate taxes will be apportioned under this section unless there is a clear and unambiguous direction to the contrary. In re Estate of Eriksen, 271 Neb. 806, 716 N.W.2d 105 (2006).

Review of apportionment proceedings under this section is de novo on the record. In re Estate of Eriksen, 271 Neb. 806, 716 N.W.2d 105 (2006).

County court apportionment orders entered pursuant to this section and section 77-2112 are final, appealable orders. In re Estate of Hanika, 229 Neb. 655, 428 N.W.2d 502 (1988).

This section does not require that allowances be made for credits given by the IRS against estate and gift taxes. Interest imposed by the IRS on estate tax is part of the "tax" to be apportioned pursuant to this section. County court apportionment orders entered pursuant to this section are final, appealable orders. Supreme Court review of apportionment proceedings is de novo on the record. In re Estate of Detlefs, 227 Neb. 531, 418 N.W.2d 571 (1988).

This section requires that federal estate taxes are to be apportioned among the persons interested in the estate. In re Estate of Kennedy, 220 Neb. 212, 369 N.W.2d 63 (1985).

Estate taxes will be equitably apportioned unless there is a clear and unambiguous direction to the contrary. In re Estate of Glaser, 217 Neb. 104, 348 N.W.2d 127 (1984); Nielsen v. Sidner, 191 Neb. 324, 215 N.W.2d 86 (1974); Naffziger v. Cook, 179 Neb. 264, 137 N.W.2d 804 (1965); Stuckey v. Rosenberg, 169 Neb. 557, 100 N.W.2d 526 (1960).

The testator's intention as expressed in the will, when considered as a whole, is controlling in determining whether a particular gift is exonerated from diminution under statute providing for apportionment of taxes. Rasmussen v. Wedge, 190 Neb. 818, 212 N.W.2d 637 (1973).

Where a testator has designated in his will that estate or inheritance taxes be paid in a manner different than that provided by statute, his directions will control in Nebraska. First Nat. Bank of Omaha v. United States, 490 F.2d 1054 (8th Cir. 1974).

Where all of estate except devises and legacies is not sufficient to pay tax burden, decedent's bequests to charity should not be reduced by payment of federal estate and state death taxes. First Nat. Bank of Omaha v. United States, 340 F.Supp. 232 (D. Neb. 1972).