Legal Blog AtlantaAn Atlanta blog for lawyers, legal professionals, law students and those interested in the law

Granting a Power of Attorney allows for an individual to designate another person, commonly referred to as an attorney-in-fact, to stand in his/her place and to make legally binding decisions on his/her behalf.  A power of attorney may be as broad to include all personal and financial decisions that the granting individual could make under their powers, or it may be limited to a specific action or decision.

Powers of Attorney serve as a great estate planning tool in the event that you might become incapacitated or incapable of making decisions on your behalf.  An attorney-in-fact can be granted flexible powers to make decisions involving the maintenance and care-taking for you as well as managing your assets and investments.  Further, the attorney-in-fact can be authorized to make estate planning, tax and business decisions to best minimize tax liabilities on your behalf.

Setting up a proper power of attorney allows for the establishment of someone to manage your affairs without needing to go to court for a guardianship appointment.  Additionally, a power of attorney can be set up to only be in effect when your doctors have deemed you to be incapacitated.  Finally, powers of attorney also ensure that gay and lesbian couples will be able to have their partners be appointed to make these decisions as opposed to blood relatives who may not know all the details of your care-taking needs or financial affairs.

Powers of attorney can be as broad and defined as you want.  Please call the skilled professionals of Larsen & Teusink PC to discuss how we can help in drafting a power of attorney, as well as any estate planning needs you may have.  678.553.2923.

No Comments »

Posted under Estate Planning, GLBT Law, Probate Law

Given the wave of mortgage foreclosures for commercial and residential real estate, as well as the sour economy forcing many current owners to renegotiate for better loan terms, you should know that these events could likely carry significant income tax consequences.

Internal Revenue Code section 61(a)(12) states that taxable gross income includes income from the cancellation of debt.  This is important for many property owners going through foreclosures, short sales, or seeking a reduced settlement payment on the balance owed on a mortgage note as they will incur income tax liability for debt cancellation. 

For example, the lender decides to foreclose on a property you own.  The bank auctions or sells the property for much less than the amount remaining on your loan with the lender.  Knowing that you may not have the funds to pay back the remaining balance on the loan, the lender “forgives” or “discharges” the amount you owe.  What the lender will do, however, is send you a 1099-IRS form stating that you received income from the lender in the amount of the loan that was forgiven.  You will have to pay income tax on that amount.

Another area where a taxpayer with property subject to a loan should exercise caution is when she is seeking to alter the terms of the loan instrument.  IRS Treasury Regulations state that a significant modification of existing loan terms can result in cancellation of indebtedness income, which is subject to income tax.  These significant modifications include, but are not limited to, altering interest rates, changing the payment schedule, substituting or releasing original collateral, and the addition or deletion of co-guarantor/co-obligors.

Tax consequences are one of many concerns that property owners need to consider if they are going through loan modifications or forced sales.  There are few exceptions where the IRS will exempt your debt cancellation from taxation, but you need to consult with an attorney to ensure your circumstances will result in no or minimal tax liability.  The professionals of Larsen & Teusink PC are experienced in reviewing lender agreements and negotiating on the behalf of property owners to best minimize their tax burdens.  Contact our office today to schedule a consultation.  678.553.2923.

No Comments »

Posted under Commercial Real Estate, Foreclosure, Property Law, Tax Law, Tax Planning

On June 4, 2010, Governor Purdue signed into law that may prove beneficial for homeowners seeking property tax relief during these difficult economic times.  This law may have an impact on how the values of homes and business properties are assessed, especially in areas where there have been significant foreclosures, distressed sales, short sales, etc.

In order to determine property values for local taxes, Georgia Code Section 48-5-2(3)(B) used to have language that stated the “tax assessor shall consider… foreclosure sales [and] bank sales.”  This previous language would only allow the assessor to “consider” such sales, but in practice, did not appear to have much force to bind the assessor to these transactions, despite the existence of neighboring properties plummeting in value.  Many neighborhoods and business properties have dropped off in home property values by over 75%.

With the passage of Senate Bill 346, the new Georgia Code Section of 48-5-2(3)(B) (effective on January 1, 2011) states that the “tax assessor shall apply… bank sales, other financial institution owned sales, or distressed sales, or any combination thereof, of comparable real property.”  There is a good argument that the “apply” language change creates a stronger requirement for assessors to automatically value a property based on local foreclosures, short and distressed sales, etc.  This argument is bolstered by the fact that there is new language the same code section that defines an arm’s length transaction as including a “distress sale, short sale, bank sale, or sale at public auction.” 

It is clear that the General Assembly wants you to have lowered assessments if your house falls within an area of increased foreclosures and similar distressed sales.  Whether county assessors will abide by these new laws is another matter.  The attorneys of Larsen & Teusink PC are experienced in handling property tax appeals throughout the Metro Atlanta Area and helping clients get a fair assessment value for their properties.  Contact one of our professionals today to schedule a consultation.  678.553.2923.

No Comments »

Posted under Foreclosure, Property Law, Real Estate Law, Tax Law

Not everyone has tens of millions of dollars on hand to leave behind to loved ones when they pass away.  The absence of great wealth, however, should not serve as an impediment to providing comfortable support for your survivors.  A great way to leave loved ones with adequate financial support after death is through the use of life insurance.

First, for State probate concerns, life insurance contracts and proceeds are non-probate assets and do not require court supervision, inventory, and public scrutiny.  Unlike wills, insurance contracts need not become a part of the public record when probating an estate.

Second, life insurance proceeds flow to the intended beneficiary free of income tax.  Internal Revenue Code section 101(a) provides that gross income does not include amounts received under a life insurance contract if those amounts are paid by reason of the death of the insured.

Third, with proper estate planning, life insurance proceeds can pass to the beneficiaries free of estate tax.  Under Internal Revenue Code section 2042, life insurance proceeds will not be subject to estate tax if the proceeds are not payable to the deceased’s/insured’s estate.  Also, life insurance proceeds will not be included in the deceased’s gross estate if the deceased relinquished all incidents of ownership over the insurance policy.  Incidents of ownership include (but are not limited to) the power to change beneficiaries, the right to borrow against the policy or offer it as collateral, and the power to assign or cancel the policy.  The policy holder needs to make sure that she/he relinquishes any of these incidents of ownership and does not die within three years of that relinquishment (under Internal Revenue Code section 2035, transfers made within three years of death are included in the decedent’s gross estate).

To avoid any gift tax consequences for the payment of insurance premiums, one should consider establishing an Irrevocable Life Insurance Trust.  A person can use her/his yearly annual gift tax exclusion (a person is allowed to currently make $13,000 in gifts to another each year) to make the payments to the trust which in turn will make payments on the premiums.  This will help ensure that the beneficiaries and estate will not incur any estate tax liability on the life insurance proceeds.

The attorneys of Larsen & Teusink PC are skilled in establishing life insurance trusts and many other instruments to best organize and plan your estate.  Contact one of our professionals today to schedule a consultation and to start planning your legacy.  678.553.2923.

No Comments »

Posted under Estate Planning, Probate Law, Tax Law, Tax Planning

Contesting a will executed by a deceased loved one is a decision not to be entered into lightly.  There are issues of jeopardizing family harmony and updholding the departed’s last wishes with respect to his/her property.  There are many instances, however, where unfair and outside pressures resulted in the drafting of a new will or the alteration of an existing will, original beneficiaries may have a right to challenge the validity of a final will.

Most successful will challenges involve attacks on the lack of formal execution of the will or the presence of undue influence.  Georgia law requires a certain number of present, uninterested witnesses to view the testator (the person having the will made) sign and execute the will, after which these witnesses make their signatures on the will near the testator’s.  There exist issues for a formal challenge, including the capacity of the testator, presence of witnesses during execution, and many others.

The other most successful means for someone to contest a will is by proving the will was created through undue influence.  Although there is a lot of case law on the subject, in Georgia, undue influence usually involves a beneficiary of a will who pressured the testator into leaving him a considerable portion of the testator’s estate, while the testator was in a weakened or influencial state susceptible to such pressure.  The fact that the beneficiary is someone who would have not have inherited by State intestacy laws and/or had a confidential relationship with the testator can create a rebuttable legal presumption that the bequest was a result of undue influence.  Although there are many other ways to challenge a will, most contests focus on instances where the intent of the testator has been replaced with that of the beneficiary.

You should consult with an attorney as soon as possible to determine what rights to a will challenge you may have.  The attorneys of Larsen & Teusink PC have the knowledge and experience to preserve your rights and to help stop those who sought only to take advantage of your loved ones for their own personal gain.  Contact one of our professionals today to schedule an appointment.  678.553.2923

No Comments »

Posted under Estate Administration, Estate Planning, Probate Law, Probate Procedure, Wills

Even though our nation’s economy is floundering, there are many potentials out there for the savvy investor.  Many investors with ready funds have turned to taking advantage of the depressed real estate market.  As many homes and commercial buildings are going through forced sales due to foreclosure, investors with cash-in-hand are able to buy many of these properties at a discounted rate.  In order to protect and shelter that investment (as well as the investor’s other assets), however, one should consider shifting the recently purchased property to a newly formed business entity.

Why go through all of the hassle and extra cost?  Business formation and continued operation as a business will shield an investor from most personal liability for negligent acts and omissions tied to that particular property.  For example, if you own land that is residential real estate worth $50,000, and someone incurs injuries on your property in the amount of $100,000, without proper business formation, an individual could go after you in court for your personal assets for the entire $100,000, not just the property valued at $50,000.

Also, another added benefit of business formation and operation is that costs incurred through your activities for the business entity yield significant tax benefits.  If a parcel of property is held as an investment for at least a year and one day, the land is then considered a capital investment.  When sold, a capital investment is sold at a lower tax rate than ordinary income.  Additionally, having a business entity makes more accessible certain business deductions not otherwise available to casual investors of property.  All of these advantages would greatly outweigh the initial planning costs involved with hiring a skilled attorney.

To make the most of these and many other benefits, one should consult an attorney to determine how best to establish your real estate investment business entities.  The attorneys of Larsen & Teusink PC have extensive knowledge of tax and business law to best protect you from law suits and tax liability.  Contact one of our professionals today to schedule an appointment.  678.553.2923.

No Comments »

Posted under Business Law, Commercial Real Estate, Planning Law, Property Law, Real Estate Law, Tax Law, Tax Planning

If you live in a Metro Atlanta neighborhood built after 1985 there is a substantial likelihood that your property may be subject to the covenants of a Homeowners Association.  We have found that people typically have one of two diametrically opposed opinions about HOA’s.   These opinions are something like -

1. My HOA is reasonably well run by competent people who are looking out for the best interest of the neighborhood; OR
2. My HOA is a diabolical organization run by power-starved Svengalis hell bent on ruining the lives of their neighbors by nitpicking over every little detail.

We don’t often hear from people with Opinion #1, but we frequently get calls from people with variations of Opinion #2.  Georgia law generally favors the decisions of HOA’s, but, requires that they not be “arbitrary and capricious” in their decision-making process.

Larsen & Teusink PC has experience resolving disputes between HOA’s and homeowners  .  Please call our offices today at 678.553.2923 and speak with one of our professionals today to learn more.

No Comments »

Posted under Real Estate Law

Whether you agree with the 2001 and 2003 tax cuts enacted under the Bush administration, you should know that after 2010, many tax rules will revert to the pre-2001 laws.  Many tax rates will increase for individuals, married couples, and corporations not only for the taxation of income, but the rates for gains on the sale of capial assets.

Starting in 2011, the highest earning taxpayers will see their income taxes increase from either 3% or 4.6%.  Taxation on capital gains (long-term investments) shall be raised from 15% to 20%.  Estate tax credit levels and rates shall revert back to pre-2001 levels, allowing for only a $1 million credit as opposed to the $3.5 million credit for 2009.  Further, with the recent passage of the recent Healthcare Reform legislation, numerous taxes will be imposed on all taxpayers.

If you hold substantial investments, assets, or expect an increase of income, now is time for you to consider what you can do to avoid as much tax liability as possible.  Generally, a taxpayer can avoid uneccessary tax payments by accellerating income receipts now and deferring deductions for subsequent tax years.  Each taxpayer’s situation is different, but in most circumstances, significant tax savings may be available for those who simply act before the end of 2010.

The skilled attorneys at Larsen & Teusink PC can determine what steps you can take to avoid paying as much tax as possible.  Call one of our professionals at 678.553.2923 today to schedule a consultation.

No Comments »

Posted under Tax Law, Tax Planning

When nearly any home is sold in Georgia, the seller is required to fill out a Seller’s Property Disclosure Statement.  This form is created to “assist Seller in disclosing to prospective buyers material adverse facts relating to the physical condition of Property that may not be readily observable.”

Most buyers will have a home inspector review the property prior to purchase.  Unfortunately, home inspectors are only able to review those issues that are readily observable.  Further, your typical home inspector is not an engineer, and thus, may be unable to to assist the buyer in discovering latent underlying issues.

The fastest, easiest, and cheapest way for a prospective buyer to find out about potential issues with the house is from an owner who is intimately familiar with the property.  For this reason, the seller/owner is often required to fill out a disclosure form.

A seller may worry that disclosing a problem with the house will scare off the buyer.  Given the current housing market, this fear is understandable, but failure to disclose an item could be considered fraud.  If you fail to disclose a problem and something goes wrong post-sale, you are opening yourself up to being sued by the purchaser.  Should this occur, your legal fees could be astronomical.

In practice, most sellers will not walk from a purchase because of a minor issue you disclose.  Further, should you be sued, it could take all your resources to merely defend the suit, let alone pay any awarded damages.  Finally, in our opinion, which may sound somewhat Pollyanna, being honest and open in your transactions is the right thing to do.

Larsen & Teusink PC has experience litigating matters related to fraud in the sale of real property.  Please call our offices today at 678.553.2923 and speak with one of our professionals today to learn more.

No Comments »

Posted under Litigation, Property Law, Real Estate Law

The passing of a loved one is never a welcomed moment in anyone’s life.  This event is doubly painful when the deceased was the prime source of support for a spouse and minor children.  Many people believe that when someone dies, that all debts owed by the deceased need to be paid before any other claims against the estate.  This is not true in some circumstances.

Georgia allows for the surviving spouse and minor children of a deceased person to petition and obtain what is referred to as “Year’s Support.”  Year’s Support provides for monetary support as well as granting of a right to reside in the family house for a period of at least one year.  A person seeking year’s support will have to offer evidence relating to the deceased spouse’s/parent’s level of prior support as well as the survivors’ current needs and expenses.

Although notice must be given to all interested parties, an award of year’s support by a probate court takes priority over most claims to an estate, even creditors.  For example if a husband dies with $20,000 in assets and $30,000 in debts, if a surviving wife can show a prior level of support of at least $20,000 or more, generally the vast majority of the $20,000 will go to the wife as an award of year’s support.  Also, if a spouse or child has been left out of a will, year’s support provides an alternative for those disinterested parties to obtain some award from the deceased’s estate.  In practice, however, there are some courts that seek to reserve money aside for any work carried on by a county administrator or expenses for the deceased’s funeral.

Larsen & Teusink PC has experience in helping clients obtain year’s support awards which have helped them move past what has already been a difficult time.  Please call our offices today at 678.553.2923 and speak with one of our professionals today to learn more.

No Comments »

Posted under Estate Administration, Probate Law, Probate Procedure