- 23 - the creditors of his estate. An interest adverse to the exercise of a power is considered as substantial if its value in relation to the total value of the property subject to the power is not insignificant. For this purpose, the interest is to be valued in accordance with the actuarial principles set forth in � 20.2031-7 or, if it is not susceptible to valuation under those provisions, in accordance with the general principles set forth in � 20.2031-1. A taker in default of appointment under a power has an interest which is adverse to an exercise of the power. A coholder of the power has no adverse interest merely because of his joint possession of the power nor merely because he is a permissible appointee under a power. However, a coholder of a power is considered as having an adverse interest where he may possess the power after the decedent’s death and may exercise it at that time in favor of himself, his estate, his creditors, or the creditors of his estate. Sec. 20.2041-3(c), Estate Tax Regs. In support of its position that, pursuant to the agreement to amend the inter vivos trust, under section 2041(b)(1)(C)(ii) decedent did not have at the time of her death a general power of appointment with respect to $5,000 of the principal of the inter vivos trust, the estate relies on the agreement to amend the inter vivos trust which was entered into by Mellon Bank, N.A., and decedent and Mr. Wright’s other children, who were Hester Wright’s nieces and nephew. We reject the estate’s position. The deed of trust provided in pertinent part as follows: (a) * * * In addition, the Trustee shall pay to said niece or nephew such sums from prin[cipal] as he or she may request in writing, not to exceed FIVE THOUSAND ($5,000) DOLLARS in any one calendar year on a noncumulative basi[s.] The agreement to amend the inter vivos trust provided inPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: May 25, 2011