Much has been written about probate fee avoidance. In fact I just googled it and up came several pages of website references to guide the reader. Can you with a power of attorney engage in probate fee avoidance on behalf of a testator whose estate may be subject to probate fees?
There are a number of legitimate probate fee avoidance arrangements available to a testator including intervivos transfer of assets for example alter ego trusts, joint tenancy for capital property and gifting of assets among others. With the appropriate care and advice on such matters as the triggering of income taxes, effect on creditors and the possible loss of control over assets, these arrangements can be very effective.
What happens if the testator is incapacitated and has given you power of attorney? My colleagues have written about powers of attorney and how they have been used from time to time abusively for personal gain. The cases are well documented. In this context, if you have been given power of attorney for a testator who has become mentally incapacitated for instance, you should seek proper legal and other professional advice if you are considering any probate fee avoidance arrangements.
Based on my experience, it is unlikely you will be able to do anything that will look like you are frustrating the testator’s intentions as they are set out in the will. Conversely, things like gifting to individuals if consistent with the intentions of the will might be achievable. Also keep in mind powers of attorney given in one jurisdiction may not be recognized in others and this may block your ability to deal with properties located in other jurisdictions, however legitimate your intentions may be.
I welcome readers to comment on this. I expect as the population gets older, the whole subject of estate planning with powers of attorney will become more and more important.