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Torchia’s Tips

What is the difference between a Power of Attorney and a Durable Power of Attorney?

The power or powers granted to an Agent or Attorney-in-Fact in a Power of Attorney ceases to exist upon the incapacitation, unconsciousness, the grantor becomes non compos mentis, or upon the grantor’s revocation of the power. Notice must be given to the Agent or Attorney-in-Fact while the grantor is compos mentis in writing.

The power or powers granted to an Agent of Attorney-in-Fact by a Durable Power of Attorney continue(s) to remain in force even after the grantor of the power(s) becomes incapacitated  or until the death of the granter of the power(s),even if the grantor is incapacitated, unconscious, or non compos mentis, unless revoked in writing with notice to the Agent or Attorney-in-Fact.

The important thing to remember is that all Powers of Attorney and Durable Powers of Attorney cease upon the death of the grantor of the powers.

This information is …

What is the difference between a “Living Trust” (Revocable Trust) and an Irrevocable RemainderTrust?

Any property deeded into a Living Trust does not leave the estate of the Trustee, because he maintains, according to the IRS, an “incident of ownership,” i.e., he can deed any of the property in the trust out of the trust at any time during his lifetime. Thus he still maintains an “incident (actual form) of ownership” in the property. Therefore, the property in a Living Trust never ” leaves the estate” of the Trustee and remains part of the “value” of the Trustee’s estate for Inheritance Tax purposes.

On the other hand, an Irrevocable Remainder Trust has the advantage of the property deeded into the trust actually “leaving the estate of the Trustee,” i.e., no longer remains part of the value of the Trustee’s estate for Inheritance Tax purposes, if, according to IRS rules, the Trustee lives for three years …

May or Might? Which is correct and when?

N.B. To read the complete answer on the blog, go to the Home Page at the bottom left and click on the same question.

A very common grammatical error is the misuse of “may and might”. Today in colloquial (casual) English, “might” is used for both. But that is not grammatically correct. A little grammatical background is in order.

Both ‘may and might” only express action or actions that are “possible”, but not “definite”, e.g., I think I may go to the movies this afternoon (not definite, but only “possible” action). I thought I might go to the movies last night (not definite, but only “possible” action on the day before).

“May and might” can only state possible action, and “possible action” in grammar is called the “Subjunctive Mood”. Wow. That’ll scare you!

On the other hand, to express “definite action”, is called the …

What does the Latin abbreviation “et al.” mean?

Et al. is the abbreviation for several Latin words, depending upon what the writer intends it to say:

Et alii means the writer wants to say “and others (people).”

Et alia means the writer wants to say “and other things.”

Inter alios means the writer wants to say “among others (people).”

Inter alia means the writer wants to say “among other things.”

N.B. All Latin forms and meanings are abbreviated in the same way, viz., “et al.”.

What does it mean to own property in Fee Simple Absolute?

To own property in Fee Simple Absolute means to own 100% of the property in every aspect.  Ownership is not shared with another.  It means to own the property absolutely insofar as you can do with the property whatever you wish within the boundaries of local zoning ordinances.


What is a Will?

A Will is one among several ways to give a gift.  With respect to Inheritance Tax, which has to be paid by the decedent’s estate, a Will is a more expensive way to give a gift, because the value of the gift is counted as part of the entire value of the decedent’s estate, and Inheritance Tax is based on a percentage of the total value of the decedent’s estate.

Therefore, you can understand why a Will is a more expensive way for a decedent to pass on any form of property to a beneficiary.

What are the elements necessary for a negligence tort claim?

The necessary elements for a negligence tort claim are.  Should any element be missing, there is no valid negligence tort claim.

1.  Duty (Does a person have a duty that is reasonably foreseeable?)

2.  Breach of Duty (Does the person breach the duty?)

3.  Proximate Cause (Is the breach of duty the direct cause of measurable damages?)

4.  Measurable Damages (Usually monetary damages.)

What is required for a valid legal contract?

For a valid legal contract, three elements are required.  If any element be missing, a contract does not exist.

1.  Offer

2.  Acceptance

3.  Legally Binding Consideration (Bargained for Exchange, e.g., payment in exchange for services or goods).