Question

Malek and Nelda Goetz live in Nevada. They are working with you to deal with several estate planning questions and concerns. Use your estate planning skills to answer the following questions:

a.Nelda read that it is a good idea to have a power of attorney in place to help deal with incapacitation issues. She is worried, however, that providing someone power over the family’s financial situation now could lead to unnecessary problems and confusion. What type of POA can Malek and Nelda establish that will address her worries? What needs to occur to trigger this type of POA?

b.Malek and Nelda were married in Nevada. In fact, they have lived their entire life in Nevada. If Malek were to pass away, with the family home valued at $500,000 at Malek’s death, what will be Nelda’s new basis in the property? Assume the basis in the home is $100,000.

c.Avoiding probate is a primary concern for Malek. Which of the following assets will be subject to probate?

•A personal residence owned JTWROS with a child.

•Life insurance proceeds paid to a non-insured beneficiary.

•Property titled as tenants in common.

•Brokerage account.

d.Malek would like to reduce the value of the family gross estate by transferring ownership of the family’s second home to his daughter; however, he is worried that he and Nelda may need to live in the house in the event they sell their primary residence (the primary residence is under contract for sale). Malek and Nelda should consider establishing what type of trust to deal with this potentiality?

e.Nelda owns a small business with three other individuals. The business is growing and profitable. Nelda would like to establish a buy-sell agreement to ensure business continuity. What type of agreement should she establish, with her business partners, if she hope that each business owner will purchase life insurance on the life of each other business owner?

f.At what age can Malek’s son elect to access assets held in a Section 2503(b) trust (the son is named as the beneficiary)?

Answer 1

a. A ‘Special’ format, on the other hand, authorizes the agent to represent the principal party only in the context of some particular specified activity and no sale, exchange, gift or mortgage of a property is to be carried out. This is a restrictive POA and titled as ‘Special Power of Attorney.’ Thus Malek and Nelda can establish a Special POA which also addresses Nelda worries.

The person granting the power of attorney is the "principal" or "grantor," and the person who attains the responsibility is known as the "agent" or "attorney-in-fact." It is imperative that people understand that the termination or revocation of a POA can happen only if one of the two holders dies i.e. the grantor or the agent or it can happen through some other legal methodology. A specific Revocation deed is required to be undertaken for this process to be completed.

b.

The durable power of attorney is a legal document granting someone the power to act in the principal’s place should the principal become mentally incapacitated. Mental incapacity can arise from a number of causes, such as illness, injury, accident, or old age. Should one of these occur, and the incapacitated person has not executed a durable power of attorney, the court will likely decide who will act on his or her behalf.

A durable power of attorney is distinguishable from a regular power of attorney because a regular power of attorney becomes invalid once the principal becomes incompetent. Thus, the advantage of a durable power of attorney is that the principal – not a judge – selects the agent. It can give the principal and his or her loved ones peace of mind, knowing that he or she has named someone to handle significant matters. It can also avoid a time-consuming and expensive court proceeding.

In order for a durable power of attorney to be valid, it must be signed before you become incapacitated. It should contain language such as: “This power of attorney shall not be disturbed by subsequent incapacity…” or “This power of attorney shall become operational upon the incapacity of the principal.” As long as you have capacity, your durable power of attorney can be revoked, provided the revocation is in writing and is delivered to the agent. The durable power of attorney automatically terminates when you die.

c. A personal residence owned JTWROS with a child. & Property titled as tenants in common. are the assets will be subject to probate.

d. A revocable trust is a legal structure that allows you (the "grantor" and "trustee") to retain control over your assets during your lifetime, as well as specify exactly how and when your assets pass to your beneficiaries. After your death, the trust acts as a will substitute and enables the trustee to privately and quickly distribute the assets owned by the trust without going through the time and expense of the probate process. Thus, you continue to have full control and use of your home during your lifetime while providing for efficient distribution at your death. Malek and Nelda should consider establishing Revocable trust.

e. There are two common forms of agreements:

• In a cross-purchase agreement, the remaining owners purchase the share of the business that is for sale.
• In a redemption agreement, the business entity buys the share of the business.

Some partners opt for a mix of the two, with some portions available for purchase by individual partners and the remainder bought by the partnership. In order to ensure that funds are available, partners in a business commonly purchase life insurance policies on the other partners. In the event of a death, the proceeds from the policy will be used towards the purchase of the deceased's business interest.

Buy and sell agreements are commonly used by sole proprietorships, partnerships, and closed corporations in an attempt to smooth transitions in ownership when each partner dies, retires, or decides to exit the business.The buy and sell agreement requires that the business share be sold to the company or the remaining members of the business according to a predetermined formula.

f. He should be an adult sounded person. So adult is assumed to be 18 years and above to access  assets held in a Section 2503(b) trust