Do I Need Estate Planning?

By: Brad P. Scott, Attorney

www.LouisianaSuccessionAttorney.com

As Benjamin Franklin once said, “in this world nothing can be said to be certain, except death and taxes.” Given these inevitable certainties of life, many people nevertheless still put off estate planning. From being too busy to deal with it today and thinking that you have plenty of time to take care of it some other day, the failure to timely plan for the inevitable can leave your family having to pick up the pieces if something does happen to you.

The fact remains, too many people simply do not plan for what will happen after they are gone.

Whether you are young or old, single or married, or wealthy or of modest means, you can benefit from even some basic estate planning. Consider these common possible situations:

1. If you become disabled and are unable to manage your affairs, how and by whom will your assets be managed for your benefit during your lifetime;
2. If you are unable to care for yourself, how and by whom will your personal and health care decisions be made during your lifetime;
3. If you have minor children, how and by whom will your children be cared for in the event you pass away or die with your spouse in a common accident; and
4. How and to whom will your assets be distributed after your death.

These are just the basic issues that your estate plan should cover. Other issues, such as financial, tax, and business planning should also be considered in connection with developing a solid estate plan. How extensive your planning becomes depends on the complexity of your estate and your individual financial and family circumstances.

If you do not have an estate plan, the default rules under state law will provide one for you but you probably will not like it. For example, if you become unable to manage your personal financial affairs due to mental or physical incapacity, without an estate plan in place, no one will be able to conduct your affairs for you and a court proceeding will be needed and a judge will appoint someone to make decisions on your behalf. The court, not your family, will control how your affairs are managed. This process can become expensive and time consuming, and your personal life will now be on display and documented in court records which are freely available to the public for review.

The same is true if you have minor children and you are a single parent, or married and you and your spouse die together in a car accident. Without advance estate planning, a court will determine who will take care of and raise your children without the benefit of knowing who you would have chosen. This could also gives rise to heated custody battles between family members who think they are the best alternative to now raise your children after you are gone.

Another issue is your assets. If you die without an estate plan, your assets will be distributed according to the default rules provided under state law. This often becomes a problem when someone remarries and has adult children from a prior marriage. Without an estate plan, your ownership in your current residence and bank accounts that you own jointly with your current spouse would become owned by your adult children of your prior marriage. In many instances this is not the result people want, and it creates problems for the surviving spouse who may be left co-owning property with step-children they do not get along with very well.

These are just a few of the many undesirable situations that could arise if you fail to plan ahead. It is important to realize that estate planning is an ongoing process and not a one-time event. Your plan should be reviewed and updated as your family and financial situations and the laws change over your lifetime. What does not change however, is that the best time to plan is now.

Although none of us want to think about our own mortality or the possibility of being unable to make decisions for ourselves, not planning is the reason so many families are caught off-guard and unprepared when incapacity or death strikes. Do not wait. You can put something in place now and change it later…which is exactly the way estate planning should be done.

Your estate plan can begin with a simple will, a durable power of attorney, and a health care power of attorney all of which do not have to be expensive. If you have a spouse or children that depend upon you, term life insurance should also be considered as part of your basic estate plan. Knowing that you have a properly prepared plan in place will give you and your family peace of mind. This is one of the most important things you can do for yourself and for those you love.

Do I Need A Will?

Should I have a will? We get this question from clients often.  The answer to this question depends on what you want to accomplish with regard to transferring your estate at the time of your death.  A will is just one tool you can use to make sure your loved ones receive the assets you wish to leave them. 

What Is a Will?

A will is a legal document that sets forth your wishes regarding who you want to receive your assets, how your liabilities are to be paid, who will be in charge of your succession, and can also provide for who will care for your minor children. There are different valid forms of wills, including the following:

Statutory/Notarial Will
A statutory will is self-proving, and is the traditional type of will with which most people are familiar. It is a usually prepared by an attorney and has to be signed in front of a notary public in the presence of witnesses.


Olographic Wills

Olographic wills are hand written wills. Although such wills are very easy to prepare and can be done without the assistance of an attorney, there are specific rules that must be followed in order for it to be valid.  It must be entirely written, dated, and signed in the handwriting of the testator. It also must be signed by the testator and dated, and the date must list the day, month and year. The testator must also sign the will or testament at the bottom of each page. Any additions, deletions or changes to the will must be made in the testator's own handwriting.

Living Will

Living wills do not deal with the distribution of your property.  It is a medical directive in which you provide instructions regarding whether you are to receive and remain on life support in the event you become incapacitated. It can also specify whether you want to leave the ultimate decision of whether to remove life support in the hands of your family, or in the hands of your doctors.


Why Do I Need a Will?
Louisiana law does provide default rules as to what will happen to your property in the event you pass away without a will.  In many situations, the default rules accomplish what the person may want to happen.  Many times however, there are certain nuisances of the law that are unanticipated that may result in your wishes not being achieved.  To avoid this situation, it is best to have a will prepared.

Creating a will can also minimize potential conflict between your survivors. All too often succession proceedings end up in litigated court battles that drag on for years.  Such situations often divide families and result in expensive legal bills.  A properly crafted will can help avoid this problem after you are gone. 



How Do I Get a Will?
The first thing is not to put if off.  If you are concerned about what will happen after you are gone, we encourage our clients to sit down as soon as possible with an attorney to figure out what needs to be done. When you meet with your attorney, it is helpful to prepare and bring with you a list of your assets and debts, and give some thought to who you want to receive your assets.  Pay special attention to items of sentimental value such as family heirlooms that you may want to transfer to a specific person.  Be sure to select an attorney that focuses on estate planning.  Although many attorneys list will preparation as a service, many are not familiar with the common drafting problems and mistakes that can result in your wishes not being carried out.

For more information, please visit us at www.LouisianaSuccessionAttorney.com

Intestate Succession - No Will at time of Death

By: www.LouisianaSuccessionLawyer.com

Question: Question: What will happen to my property if I die without a will in Louisiana, and who will inherit my property if there is no will?

Like many states, Louisiana has a set of default rules that will apply to determine what will happen to your property if you die and you did not prepare a Last Will and Testament prior to your death.  For some people, the default rules that kick in are sufficient to care out their wishes and as such there is no need for having a Last Will and Testament.

An understanding of these rules is however recommended to make sure that what you want to happen to property will be carried out under these default rules of Louisiana succession.

Under the default succession rules in Louisiana, community property and separate property are handled differently.  Generally, community property assets are things that were acquired during the marriage of the decedent and his or her spouse that jointly belong to the decedent and his or her spouse.  Those assets which are not community property are considered separate property assets of the decedent.

Many people do not know that the default rules do not favor a surviving spouse.  If you die without a will, your separate property will first go to your children, and if you do not have children, your separate property will go to your parents and if they are deceased it will go to your brothers and sisters.  It is only in the event that you do not children, or parents, or siblings that your spouse will acquire your separate property from your succession.  If you wish to avoid this situation, proper planning is necessary.

Community property is handled somewhat differently under the default rules.  Again however, your surviving spouse is not favored.  The default rule provides that the ownership of your community property will go to your children who will then co-own the community property with the surviving spouse.  It is only if you have no children that your spouse will receive your community property from your succession.

Although your children inherit your community property, the default rules do grant your surviving spouse the right to use your community property until his or her death or until remarriage, whichever occurs first.  This right to use the community property is known as a spousal usufruct in Louisiana.

This is just a brief explanation of the default rules that apply in Louisiana when someone dies “intestate” meaning without a leaving a will.  If these default rules do not accomplish what you want to happen to your property after you are gone, advanced planning and the preparation of a will is needed.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Transferring Title to a Vehicle Without Succession

By: www.LouisianaSuccessionLawyer.com

Question: A family member died and only owned a car. Do I have to open a succession in order to transfer the title of the vehicle to my name so I can sell it?

Louisiana has a non-judicial procedure for transferring the title of a vehicle in the event of the owner’s death that does not require any court proceedings to be initiated. An Affidavit of Heirship can be obtained from the Louisiana Department of Public Safety and Corrections (Office of Motor Vehicles) that can be completed to transfer the title to the vehicle without the need for opening a succession through a court proceeding. 
In addition to the Affidavit of Heirship, the DMV will also require a copy of the Last Will and Testament and the certificate of title. A copy of the Affidavit of Heirship can be downloaded here.
If there is only one surviving heir and he/she wishes to title the vehicle in his/her name, only the Affidavit of Heirship and supporting documents needs to be filed. 

If one of the heirs is a surviving spouse and he/she wishes to transfer the vehicle to a new owner, the Affidavit of Heirship must be completed by the surviving spouse as well as all other heirs, but only the surviving spouse is required to sign the a notarized bill of sale or act of donation.  If there is no surviving spouse and the sale or donation is to a new owner, a bill of sale or act of donation must be signed by all heirs.

This procedure is useful when the only property owned by the decedent was a vehicle.  It also however can be used as part of a regular succession in order to transfer the vehicle into a designated person’s name for purposes of maintaining insurance on the vehicle while the succession is ongoing.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Out of State Wills

By: www.LouisianaSuccessionLawyer.com

 Question: My parent died in Louisiana but his Will was prepared in another state. Can I open succession with an out of state will in Louisiana, or will the Louisiana Court recognize the Last Will and Testament drafted in the other state?

Under Louisiana law, a Louisiana court will recognize a will that is executed out-of-state if the will was prepared in an manner and form that would make it valid under the law of the state where it was signed, or under the law of the state where the person who made the will was domiciled at the time he/she signed the will.

For example, let’s say that your parent owns a home in Louisiana.  Later in life, due to health reasons, your parent moves to Texas to live with your sister who can provide daily care.  During the time he/she is living with your sister in Texas, a Texas attorney assists your parent in drafting a will that complies with the form requirements for wills in Texas, but differs from the format that Louisiana requires.  After your parent passes away, a succession is necessary in Louisiana to deal with the family home that your parent owned here.
Although the will is not in the format that Louisiana law requires, a Louisiana Court will nevertheless recognize and probate the will since it was prepared in accordance with Texas law.

Sometimes however, rather that probating the will in Louisiana, a person’s succession is actually opened in another state and the will is admitted to probate outside of Louisiana. 

If there is a need to also open a succession in Louisiana to be dealt with assets located in Louisiana, Louisiana law permits the family to present a copy of the probated will from the other state and the will shall have the same force and effect as the original probate of a domestic will.    

The uniform wills and probate law is found at Louisiana Revised Statute 9:2401 and 9:2421 et seq. respectively.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Ancillary Succession

By:  www.LouisianaSuccessionLawyer.com

Question: We have opened a succession for my dad in Mississippi that is pending. There is however real estate that he owned in Louisiana at the time of his death. The lawyer handling the succession said the property in Louisiana can’t be handled in the Mississippi succession and we need to get a lawyer in Louisiana to handle it. What do we need to do?

Yes, a succession in Louisiana will be needed in order to transfer the Louisiana real estate from your dad to his heirs.  The procedure is known as an “ancillary” succession proceeding.

Louisiana law provides that when a non-resident dies and owned property in Louisiana, that a succession can be opened here in Louisiana to transfer ownership of the property.  In order for the succession representative in the Mississippi succession proceeding to act with respect to the property however, it will be necessary for him or her to qualify to do so in the Louisiana court where the ancillary succession will be filed.
If your father had a Last Will and Testament that has already been probated in the Mississippi succession, Louisiana law permits you to present a copy of the probated will and the Louisiana court will allow the will to have the same force and effect as the original probate of a domestic will.    

Ancillary succession proceedings are usually pretty simple to conduct and can be opened and completed sometimes within as little as a few days if necessary.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Marital Portion aka Widower's Share

By:  www.LouisianaSuccessionLawyer.com

Question: My husband died and the house we have lived in for the last 20 years is only in his name, and the bank accounts were all in his name as well. My in-laws want me out the house and want the money out of the bank accounts. I will be left with nothing….what do I do?

Unfortunately, we run into this situation all too often.  It comes up in situation of a second marriage or when people get married later in life.  What happens is that the newlyweds move into a house that was purchased and owned prior to the marriage by the other spouse.  They live in the house throughout their marriage, treating it as their family home.
Unless proper estate planning is done, the spouse who moved in can find themselves kicked out of the family home by the in-laws or step-children.   This is due to the fact under Louisiana law, a surviving spouse does not inherit the separate property of the spouse who passes away. Unfortunately, many couples do not know this, and without planning can result in the surviving spouse facing becoming homeless and penniless as the result of the death of their husband or wife.

In order to avoid this unfortunate outcome, Louisiana law recognizes what is known as a “marital portion.” The law provides that when a spouse dies rich in comparison with the surviving spouse, that the surviving spouse is entitled to claim a “marital portion” from the succession of the deceased spouse.  See Article 2432 of the Louisiana Code of Civil Procedure.  The purpose of this law is to prevent a surviving spouse from being left in poverty after having becoming accustomed to the wealth of the spouse who passed away.
In order for a surviving spouse to qualify for the marital portion, the value of the assets of the deceased spouse is compared to that of the surviving spouse.

Although there is not concrete test to qualify, as a rule of thumb the surviving spouse will qualify for the marital portion if his or her assets are worth 20% or less of the value of the deceased spouse’s assets.  As a simple example, assume that a husband dies and the value of his property at the time of his death is $100,000.00.  If the surviving wife’s assets are worth $20,000.00 or less, she would likely qualify to receive a portion of her husband’s assets from his succession.

The amount of the martial portion is set one-fourth (1/4) of the succession in ownership if the deceased died without children, or one-fourth (1/4) in usufruct for life if the deceased spouse is survived by three or fewer children, or a child’s share in usufruct for life if the deceased spouse is survived by more than three children.

The martial portion is capped at one million ($1,000,000.00) dollars. The amount of the martial portion may also be reduced by the amount of any property left to the surviving spouse in the deceased spouse’s will, and also reduced by the amount of any payments the surviving spouse receives as the result of the death of the spouse which includes life insurance proceeds, social security payments, and pension benefits that come about because of the death of the spouse.

The marital portion is an important right in favor of the surviving spouse that must be considered and asserted in the succession when possible to avoid a surviving spouse falling into poverty.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com