Who Will Pay Your Long Term Care Expenses (Part 1 of 3)?

It is estimated that someone turning 65 years old today has a 70% chance of needing long term care services in their remaining years. And 20% of people turning 65 will need long term care for more than five years.

Most people believe that long term care is expensive. Estimates of monthly nursing home cost are around $5,500. And in twenty years, it is estimated that monthly nursing home costs will be in excess of $10,000.

There are three payors of long term care expenses: (1) the government; (2) insurance companies; and (3) the person needing care.

This first part of a three part series focuses on when the government covers that expense. Some people mistakenly believe that Medicare covers long term care expenses. Medicare draws a line between medical care and custodial care. Medicare does not cover custodial care - things like bathing, eating, going to the bathroom, dressing, and moving around.

When the government covers one's custodial care expenses, such as, nursing home expenses, they do it through the state's Medicaid program. But you have to be deemed "poor" under Medicaid's rules to qualify for this assistance.

There are many rules and regulations regarding Medicaid qualification, but the most basic of rules state that beside your home and a vehicle, if you own more than $2,000 of other "Countable Resources," you will not be eligible for Medicaid - you must spend and deplete resources first. Typical countable resources include money in the bank, investments, retirement accounts, and real estate that is not your home property. There is also an income test that must be passed.

Some people attempt to arrange their assets in a way to qualify for Medicaid when they go into a nursing home. Some people transfer assets out of their name. But if anything of value was transferred out of one's name within the previous five years prior to a Medicaid application, the applicant will not qualify for Medicaid and they must be a private pay patient for some period of time.

Some people inquire about transferring their assets into their heirs names while they are healthy, but Seniors get queasy about this because they lose control of their money and their estate when they transfer everything they own to others. In addition, adverse capital gains tax effects often occur when you transfer appreciated assets to others while you are alive.

So others get legal help to transfer assets to particular types of trust so that they can keep some element of control over the assets after they are transferred to the "Family Trust." In addition, the "step-up in basis" may be retained which will help the children when they subsequently sell trust assets after the death of the parent(s).

So who typically engages in this Medicaid Planning? Typically it's the middle class who perhaps have seen a parent, relative, or friend lost their life savings to long term care costs. Or perhaps people who feel they have paid enough tax over their lifetime and they want to protect their remaining assets from the government and for their loved ones to inherit.

Nonetheless, the key to protecting your estate, regardless of who may incur those costs in the future, is to plan for this while you are healthy.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Five Common Estate Planning Mistakes People and Their Attorneys Make

Face it - nobody's perfect. Mistakes are made in every facet of life, including estate planning. The following are five of the most common mistakes that people make when they attempt to put their estate legal affairs in order.

(1) Not addressing long term care. If you don't address the possibility that your estate will be depleted due to nursing home or long term care costs, there may not be an estate to leave to anyone when you pass away. But sometimes this topic does not get addressed. People will go to a lawyer to "get a Will done," and nobody brings up the legal strategies that are available to protect assets from long term care costs. Some people have this addressed through long term care insurance. And others who have significant wealth can cover the cost of their care out of their pocket without depleting much of their estate, but the middle class often is forced to deplete their life savings to cover this expense, and then the state's Estate Recovery Rights force the sale of the home after death to reimburse Medicaid for it's expenses.

(2) Not Addressing Taxes. While most people do not have to worry about the federal estate tax (due to the current exemption of $11.2 million), there can be significant capital gains tax and income tax consequences that result from transitioning assets to your spouse and the next generations. How to best utilize the step up and the double step up (for married couples) should be addressed. And some people take advantage of various distribution rules by naming as beneficiaries of their traditional IRAs their spouse, children, grandchildren, or charities.

(3) Probate. I've heard many times, "I went to a lawyer to get a Will done, and nothing was said to me about avoiding probate." Many lawyers are comfortable writing wills and then cashing in on the probate/Succession when the person dies. No comprehensive estate planning legal program should be put in place without at least a discussion about whether the court-supervised, attorney involved probate can or should be avoided.

(4) Working With the Wrong Person. Some people see that financial institutions offer "Estate Planning," and then discover that some financial institutions define estate planning as selling you life insurance. You need to start with a lawyer, but not any lawyer. Many attorneys are not sophisticated in all of the nuances that are addressed in these mistakes. Or perhaps you start talking to a lawyer who "talks over your head and does not listen and does not speak in terms you can understand."

(5) Covering Reasonable Contingencies. Not every estate planning legal program can cover every possible contingency, but they should cover the basic "what ifs" like a spouse predeceasing. Many life insurance and IRA owners designate their spouse as their beneficiary, but they neglect to designate contingent or secondary beneficiaries. Then, your survivors are bound by the terms of the life insurance contract or the IRA agreement, and there may be unintended consequences. Providing for a spouse predeceasing should be addressed. Many estate legal programs also address a child predeceasing or a child getting divorced before or after he or she receives an inheritance.

You don't know what you don't know. So hopefully this article lets you know that certain areas may need to be addressed as part of putting your estate legal program in order, even if you did not think of these things initially.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Medicaid Eligibility: What If You Transfer Assets, And Then Transfer Additional Assets Later?

We get asked the following question often: "What if I make a transfer out of my name to other individuals, or to a trust, and then I transfer additional assets out of my name at a later date? Which of these assets will be protected? How will this affect my long term care Medicaid application or eligibility?

One of the biggest threats to a person's estate is that they will be forced to deplete their estate while they are alive due to long term care expenses, and then the state will exercise it's estate recovery rights when they die so that the children or other heirs will not be able to inherit the family home.

Many people transfer assets to individuals or certain kinds of trusts while they are alive in an attempt to "protect" those assets from nursing home expenses. However, the complicated Medicaid eligibility rules make it difficult for people to take the actions they want or need to take to protect their estate.

One area that causes a great deal of confusion is when an individual makes multiple transfers at different times. Let's take an example: Let's say Joan transfers assets having a value of $400,000 on January 1, 2016. Then, on January 1, 2020, Joan transfers an additional $50,000. Then, on March 1, 2021, Joan moves into the nursing home and applies for Louisiana Long Term Care Medicaid. The following is the analysis that takes place.

An inquiry will be made to determine whether Joan had transferred any resources in the previous five years. The only resource transferred in the previous 5 years was the $50,000 transfer on 1/1/20. Since a transfer had taken place in the previous 5 years, a transfer of resources penalty period must be determined. In order to determine the penalty period, one must divide the value of the resource transferred ($50,000) by the average monthly private pay rate (determined to be $5,000), rendering Joan ineligible for Medicaid for 10 months beginning with 3/1/21 (the date of Medicaid application and otherwise eligible except for the transfer).

Many people, once they realize the application of the rules to the multiple transfers will conclude that the $400,000 is protected but the $50,000 is not.

So, what should Joan do? One option is to have the $50,000 returned to her and spend that prior to Medicaid application. The Louisiana Long Term Care Medicaid Manual provides that the uncompensated value of a transferred resource is not counted if the original resource is returned.

Or, Joan could apply for Medicaid, get denied originally, and then be eligible for Medicaid 10 months later. Or, she could go through the complicated and often mis-understood process of applying, getting denied, and then returning part of the resources to reduce the penalty period, pursuant to the rule which states that if only part of the asset or its equivalent value is returned, the penalty period is modified but not eliminated.

None of these legal strategies should be attempted by the lay person who does not have an excellent working knowledge of the Medicaid Eligibility Manual. The key in protecting your estate is to start early, work with the right people, and get it right the first time. One mistake could make things really difficult for your spouse, children, and grandchildren.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Bring This to 1st Visit With Succession Lawyer

Over the years, thousands of families have contacted us to start the discussions on settling the estate after their loved one passed away. This post describes what the family should bring to the estate lawyer's office in its first visit with the Succession attorney.

Let's provide an example. Say Mom died leaving three adult children. Mom had a last will and testament. A couple of weeks after Mom dies, one of the children realizes that accounts are frozen, they cannot sell Mom's home or other property, and they can't even sell her vehicle. So they contact an estate attorney to start the process of settling Mom's estate. What should they bring the attorney?

Every estate settlement is different, and each one requires different documentation, but you should be prepared to, at least, get the following together to bring to the lawyer who will be handling the Succession settling.

Last Will and Testament. The Will often dictates the steps that are required to complete a probate. Without knowing the terms of the Will, we cannot lay out the steps needed to complete these matters. You should bring in the ACTUAL original last will and testament, not just a copy. The actual will gets filed at the courthouse often within a a few days after the 1st meeting with the attorney.

Other relevant estate documents. Some people pass away having previously created trusts, marriage contracts, or were involved in prior probates which reflect who one owns assets. Bottom line - if a legal document looks important, bring it to the probate meeting at the estate attorney's office.

List of Assets and Debts. Many people, when they pass away, own real estate, bank accounts, brokerage accounts, and vehicles. The detailed particulars of these assets and debts need to be documented on the appropriate probate pleadings.

The People Involved. In our example where Mom died with three adult children, it's important that all three children participate in the first visit, even if it is via conference call because they are not physically or geographically able to be present in the attorney's office. When all of the relevant parties can hear the importance of following the required procedure, they will have a collective appreciation regarding what is necessary to complete all matters related to the estate - from start to finish. If one or more parties does not participate, then inevitably, that party will have questions that cannot be answered by other family members, causing more delay and frustration. Get everyone there.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Banks and Brokerage Firms: We Hardly Use Letters Testamentary These Days

After a Louisiana resident passes away, a surviving loved one often goes to the deceased's bank, credit union, or brokerage firm, in an effort to settle the estate of their loved one. The financial institution promptly responds by saying something like, "Your loved one's accounts at this financial institution are all frozen. You must bring back "Letters Testamentary" or "Letters of Administration" in order to gain access to funds.

These days, the financial institutions are asking for the wrong things. They should be requesting "Letters of Independent Executorship" or "Letters of Independent Administration."

Since 2001, Louisiana has authorized the independent administration of estates - less court supervision. Virtually all Wills written since 2001 authorize this procedure. And if a Will does not authorize it, then the heirs can agree to operate under this independent administration procedure.

After a death, when the family gets the executor confirmed, and if the executor is acting as an independent executor (which is the case in an overwhelming majority of Successions), the court does not issue "Letters Testamentary." The court issues "Letters of Independent Executorship."

So the bank requests Letters Testamentary, and then we have to tell them that we will not give them what the bank is requesting. We will give them Letters of Independent Executorship.

It would be easier on everyone if the financial institution tells the survivors of its clients and customers that they can bring in the Letters of Independent Executorship to gain access to the funds of the deceased.

To some, this may seem to be a trivial matter. But when we deal with so many confused survivors, anything the legal and financial industries can do to help those in need at a difficult time would make everyone's job easier. Just my two cents.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Do Usufruct Account Investments Get Taxed When Naked Owners Receive Them?

I'm occasionally asked whether heirs or naked owners are subject to tax when they receive the proceeds or investments from a usufruct account.

To explain this easily, let use an example: Husband dies while Husband and Wife own a $2 million investment account. The account is community property. Husband's Last Will leaves the lifetime usufruct of his estate to Wife. Husband's children are designated in the Last Will as the naked owners.

Husband died. Wife and naked owners get together, hire lawyers, complete the Succession, judge signs necessary court orders, financial institution's lawyers review the court orders, and the $2 million joint account gets divided into two new account: one solely in the name of Wife (her half of the community property), and another account titled, "Wife Usufruct." Years later, after interest, dividends, sales, reinvestments, market appreciation and depreciation, Wife dies and assets are distributed to the naked owners. The naked owners are wondering whether tax is due.

There really should be two questions asked: (1) Do we owe tax? and (2) Are we receiving the right assets?

Unless Husband's estate was large and exceeded the estate tax exemption when he died - requiring an estate tax marital deduction election, the usufruct assets will not be included in Wife's estate for federal estate tax purposes. So, typically no estate tax due.

Income tax not likely to be applicable under the general rule that an inheritance is free of income tax. Note that beneficiaries of traditional IRAs and certain annuity beneficiaries have income tax consequences upon distribution of those accounts, but that is beyond this scope.

The real messy one is the capital gains tax. It's messy because usufruct accounts are often not established consistently with Louisiana usufruct law.

Here'a a few rules that are helpful. Interest and dividends produced by assets subject to usufruct belong to the usufructuary. If stock in the usufruct account pays a dividend, that dividend should go into Wife's individual account. This is important because Wife's heirs may be different than Husband's naked owners. Also Wife's assets in her estate get another step-up in basis when she dies. While assets subject to usufruct typically do not.

Another important rule all usufructuaries and naked owners to know is that when investments (nonconsumables) subject to usufruct are sold, the usufruct attaches to the proceeds of the sale (money, which is a consumable), and Wife becomes the owner of the money with an obligation to pay the naked owner this amount when the usufruct terminates.

Another example: Wife, as usufructuary. sells investments in the usufruct account for $500,000. There may be capital gains tax due if these investments had appreciated since Husband died. Nonetheless, Wife reinvests these proceeds and, at her death, they are valued at $800,000. Result: Wife's heirs benefit from this appreciation. Wife's heirs enjoy the benefit of another step-up in basis when Wife dies, and Wife's estate owes Husband's naked owners $500,000.

Bottom line: If assets subject to usufruct are sold, then when the usufruct terminates and the naked owners receive the assets and sell them, they will owe capital gains tax on the appreciation that occurred since the date of death of the person who bequeathed naked ownership to them.

There are many moving parts to usufruct and naked ownership taxation, ownership, and indebtedness that affect the rights and obligations of usufructuaries and naked owners. And since sharing an inheritance is not always the most amicable of life circumstances, it would behoove you to have an understanding of these difficult-to-understand concepts.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Estate Planning Issues That Arise When a Couple Gets Married Later in Life Bringing Children and Assets into the Marriage

It's common these days for two people to get married later in life after getting either divorced, or outliving their first spouse. It's also common for those spouses who get married later in life to have adult children, and they also often bring significant assets into the marriage. This post addresses some of the estate legal issues that are involved when spouses get married later in life.

When no advance legal planning is addressed prior to the marriage, problems often arise after the death of one of the spouses. It's common for there to be confusion regarding who owns the marital assets. Do they belong to the husband? Do they belong to the wife? Which assets are community property? Is there any community or separate debt? Are there any reimbursement issues? These problems get compounded when the people having the discussioin/argument are the surviving spouse and the children of the first spouse to die.

Basic Louisiana community property law dictates that anything acquired during the marriage through the effort or skill of either spouse is community property. Some spouses mistakenly believe that if these "earnings" remain in the name of the spouse who earned them, then those assets would remain the separate property of that spouse.

Basic Louisiana community property law also dictates that the natural and civil fruits of the separate property of a spouse are community property. Again, many spouses mistakenly preseum that if a spouse has "separate" investments, then the interest and dividends that those "separate" investments produce must be separate property - not so.

Some spouses, particularly those with income producing assets, will sign a declaration reserving the fruits of their separate property as separate property. But this cannot be done without their spouse knowing about it. A copy of the declaration must be provided to the other spouse, and the declaration must be filed in the appropriate public real estate records.

Many couples who get married later in life, each of whom has children of their own, and each of whom have significant assets they want to "protect," sign a matrimonial agreement, also known as a "pre-nup," "marriage contract," or "separate property agreement." Couples who do this typically attempt the modify the default community property rules that exist in Louisiana when a matrimonial agreement is not in place.

Many matrimonial agreements provide that each spouse will have their own separate assets and debts, and there will be no community property. This can make it easier to determine "who owns what" when one spouse dies. When done right, there are no community property issues, community debt issues, reimbursement issues, or other claims that the estate of the first spouse to die might have against the surviving spouse. These agreements are typically signed by both spouse prior to the marriage, and they must be recorded in the appropriate public real estate records.

And then the next issue that must be addressed after the above is addressed is: How to leave our respective estates to each other and our children or other heirs - the will and trust discussion.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Where to Keep Your Last Will and Testament

I'm often asked, "Where should we keep our last will and testament?"

This is an important issue because, after you pass away, your original last will needs to be filed at the courthouse to start the court-supervised probate process (often called "Succession" in Louisiana). You have several options when it comes to where you should store your last will.

Some people mistakenly believe that all Wills are stored at the courthouse. Your Will does not get filed at the courthouse until after you pass away and the Succession is underway. A probate/Succession cannot get started until after someone dies.

Some choose to keep their original last will at their residence. This keeps the will easily accessible, but many Louisianians lost all of their important legal documents in recent hurricanes and floods around south Louisiana. If you do keep your last will and testament in your home, perhaps you should keep it in a waterproof and fireproof safe, preferably one large enough or built into the structure to prevent theft.

Others decide to keep their will in their bank safe deposit box. If you do this, you must make a decision regarding whether you want to grant someone else the authority to access your box. If no one else is "on" your safe deposit box, then a court order will be necessary after you pass away to open your box and access the contents of your safe deposit box.

Some people, at their attorney's suggestion, allow their attorney to keep their last will and testament. I've never been a big fan of the attorney keeping the originals of all of the Wills that he or she prepared. Attorneys can move around often. In addition, an awkward situation arises when the survivors may not want to use the legal services of that particular attorney or law firm after the death of a loved one. Many attorneys keep the original wills of their clients because it gives them a competitive advantage when it comes to the lucrative probate work that is necessary of the death of the will-maker.

The Louisiana Legislature has authorized the Secretary of State to maintain a Will Registration Form. While you cannot enclose a copy or the actual will, you can document the intended place of our will or the name and address of someone who has information regarding where your will is located. We don't see this Louisiana Secretary of State Will Registration Form used very often.

While there may be no "perfect place" to keep your last will and testament, you should, at least, let your trusted love ones know of the existence and location of your last will and testament.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

How To Amend or Modify a Revocable Living Trust

It is common for people, as part of the estate planning process, to establish a revocable living trust to provide for the disposition of trust assets outside of probate. Occasionally, people who previously established a revocable living trust want to amend or modify or revoke their trust.

Reasons why people would amend their revocable living trust include someone wanting to change the beneficiaries of their trust; someone wanting to amend how a beneficiary receives his or her portion or share; or perhaps changing the name of the Successor Trustee who is in charge of administering the trust after the death of the Settlor (the person who established the trust).

So, how do you amend or revoke your trust? Well, you must first look to the state law of the state that governs the trust instrument. The following is an overview of the Louisiana law applicable to modifying or revoking a trust.

What you should never do is pull out a pen and pencil and start marking on your trust. None of this will be valid. Most trust amendments or revocations in Louisiana are done by authentic act. An authentic act, generally, is a writing executed before a notary public and two witnesses, and signed by the person amending their trust, the witnesses, and the notary. Most trust amendments are done this way.

The Louisiana Trust Code also provides for modifying a trust by act under private signature, and also by testament. Even though Louisiana law provides for three different ways to modify a trust, most amendments are done through an authentic act.

Bottom line - don't try to amend or revoke a will or trust without getting some legal help from an estate attorney. Different rules apply to wills and trusts, and you must work with an attorney who understands all of this and helps you get it right the first time - there is too much at stake.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Don't Handwrite Changes on Your Last Will and Testament

I've seen many people over the years want to make changes to their existing last will and testament. Without knowing any better, they pull out their existing will, grab pen or pencil, and cross through the things they want to change while writing in replacement provisions.

For example, someone may want to change their executor. They feel that the previous executor they named (let's call him "Joe") is now a bum, and they want to replace Joe with Fred.

Or, let's say a Will provides a specific bequest either to an individual or charity of $100,000. But the testator now wants to change that bequest to $5,000.

There are a couple of Louisiana laws that are in play here. First, Louisiana law provides, in pertinent part, that a revocation of a testamentary provision occurs when the testator clearly revokes the provision or legacy by a signed writing on the testament itself.

So, the Louisiana rules are somewhat relaxed to permit the revocation of a provision in a last will by a signed writing that is not dated but which clearly revokes the provision.

However, regarding a replacement provision, the formalities are more stringent. Louisiana law provides that, "Any other modification of a testament must be in one of the forms prescribed for testaments.

Example: A woman pulls out her old will naming Joe as the executor. She scratches through Joe's name, writes in Fred's name, and signs the change. The result would be that Joe is no longer the executor because she revoked the provision by a signed writing, but Fred will not be the executor, because this modification is not in one of the forms prescribed for testaments - it does not meet the formality requirements of an olographic testament because it is not dated.

Be very careful when you attempt to change your Will. Your safest bet is to work with an attorney who understands the rules as they relate to revocations and modifications of testaments.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Protect IRA From Nursing Home: Medicaid Planning

Often, when an individual enters a nursing home, a determination is made regarding whether they will be a private pay patient or a Medicaid recipient while in the nursing home. One part of the Medicaid application process revolves around the Medicaid applicants assets.

An individual often owns exempt assets and countable resources. Common exempt assets include a home and one vehicle. Countable resources include most other assets, including bank accounts, stocks and bonds, non-home real estate, and LLC interests.

The question often comes up as to whether an Individual Retirement Account (IRA) is a countable resource.

The Louisiana Medicaid Eligibility Manual provides, in pertinent part, "Count funds in an IRA as a countable resource."

When people pre-plan for a future Long Term Care Medicaid eligibility, they often transfer title to their assets to either other individuals or to certain types of trusts. While it is fairly simple to transfer title of real estate, investment accounts, and most other assets, it is not possible to transfer ownership of an IRA to others or to a trust.

Some people consider taking a large distribution from their IRA, paying the taxes, and then protecting the after tax proceeds, but this often requires the IRA owner to pay a huge income tax bill and most people don't want to do that  - I don't blame them.

We often tell people that while you are fortunate to have an IRA, you are kind of "stuck" with it for nursing home purposes.

But know that strategies exist to protect the funds in your traditional or Roth IRA, but most of those strategies require that you plan years in advance of entering a nursing home - so it's critical that you get armed with the possibilities and take sufficient action to protect those funds.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450

How is Louisiana Estate Planning Law Different From Other States? How Does the Napoleonic Code Affect Louisiana Law?

Most "outside of Louisiana" estate planning attorneys know enough to know that estate planning law in Louisiana is "different," but they don't really know how. Attorneys that are outside of Louisiana typically tell their clients that Louisiana follows the Napoleonic Code, and that they must seek out at attorney in Louisiana to guide them through their estate planning issues.

The purpose of this post is to dig a little describe and describe a few of the specific differences between Louisiana estate planning law and the estate planning law of the other 49 states. What follows is a description of three differences of Louisiana estate planning law:

(1) Usufruct. Louisiana is the only state that recognizes a form of ownership called usufruct. Usufruct is super common in Louisiana because when a Louisiana married person (with children) dies without a last will and testament, their surviving spouse inherits the usufruct of their one-half of the community property. In addition, some people, in their last will and testament, specifically bequeath the usufruct of their estate (or some portion of it) to their surviving spouse. 

(2) Forced Heirship. Louisiana forced heirship law is unique. While the forced heirship law has been watered down over the last 2-3 decades, it generally means that certain children must inherit from you - you cannot disinherit them.

(3) No TOD or JTWROS. In other states, many people titled their accounts or their real estate in a way so that ownership is transferrred to others at their death outside of the court-supervised probate proceeding. But Louisiana does not recognize these titles, forms of ownership, or designations. When someone, in Louisiana, happens to title an investment account JTWROS (Joint Tenants with Rights of Survivorship), the account (or at a minimum, their portion of the account), will be frozen when they die and court orders must be obtained in a probate proceeding before ownership can be transferred to the appropriate heir (which may or may not be the person listed on the account as the "Joint Tenant."

If there is any state in our United States where you must have an attorney well-versed in state-specific law, it is Louisiana. Many other state law differences exist, but this post should start to give you an idea of a few estate planning issues that can confuse people as they start the process of putting their customized and thorough estate planning program in order.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450

Value Estate Assets High or Low After Death?

When working with surviving family members after the death of a loved one, the survivors often want my help to help them deploy a strategy to value the assets of the deceased. The survivors often want to know whether estate assets should be valued high or low. I typically tell them that this is not a "game" that they can play, they are bound to have assets valued at "fair market value." Nonetheless, some people feel they can wiggle the values if it benefits them.

Very few estate are subject to the 40% federal estate tax. However, those survivors who face an estate tax typically want to see assets valued as low as reasonable in order to avoid as much of the 40% estate tax as possible.

Survivors of estates that do not have to face the federal estate tax, however, may have the opposite strategy. Since estate assets benefit from the step up in basis, survivors often want estate assets valued as high as reasonably possible in order to get the maximum step-up in basis. 

Certain assets owned by a deceased are not subject to varying fair market values. Cash, bank accounts, and publicly traded securities are easily valued as of the date of death - merely determine the account balances.

Other assets, however, are subject to subjective determinations of fair market value. Land, rental property, other real estate, and ownership interests in a business, are often difficult to value as of the date of death of the owner.

The IRS has a definition of fair market value. The IRS defines fair market value as the amount that which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell, with both parties having reasonable knowledge of relevant facts.

Our system is not necessarily set up as a "game" that survivors can play and arbitrarily determine fair market value after their family members die. Nonetheless, when estate tax is an issue, heirs often attempt to encourage appraisers to appraise assets "low." While when estate tax is not an issue, survivors want to see assets assets valued "high" to take maximum advantage of the step-up in basis. And since so few estates are subject to estate tax these days, most estates benefit from the "higher" valuations.

Note that these rules do not apply to IRAs. There is no step up in basis of investments inside an IRA. Any distributions from a traditional IRA are subject to income tax.

Also, some Louisiana residents mistakenly believe that the asset value listed in the Sworn Detailed List of Assets and Liabilities filed in the deceased's Succession proceeding is the end-all, say-all when it comes to estate valuation. But of course the IRS can always question any valuation the family puts on the Sworn Descriptive List.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450

How To Keep Your Sons-In-Law and Daughters-In-Law Out of Your Estate

It's common for parents to want to keep their sons-in-law and daughters-in law out of their estate, for a variety of reasons. Common reasons include the fact that the in-law spends too much money; the in-law has their own kids; the in-law will inherit from their own parents and grandparents; some parents want to keep everything in the "bloodlines" because they inherited from parents and grandparents; others just don't like their in-laws; and others fear that their children will get divorced in the future and lose their inheritance.

Parents have several options when establishing an estate legal program. One option is simply leave the inheritance to the child - outright. Some parents reason that an inheritance is the separate property of the child so that should take care of it. However, inheritances that children receive are often, either intentionally or unintentionally, commingled with community property causing the inheritance to lose its separate property status.

A second option parents have is to leave their child's inheritance to a trust for the benefit of the child. If the parents name the child as the trustee, the child's spouse could exert influence over the child and force the child to take excessive distributions from the trust. But some parents tell me, "Let's leave it to a trust for our child and name our child as the trustee. If our child screws it up, so be it. We did what we could do to try to protect him without taking away his access to his inheritance."

A third option is to leave your child's inheritance to a trust, but name a 3rd party as the trustee of the trust - in essence restricting your child's access to his or her inheritance. By restricting your child's access to the trust, your are restricting your child's spouse from influencing your child to access the trust. You may even wish to name your child's children as the principal beneficiaries of the trust so that when your child later passes away, remaining trust assets would stay in the bloodlines benefiting your grandchildren. Your child's withdrawal or distribution rights become key components to this program.

There are many factors that play into how you leave an inheritance to your children. You must factor in the Louisiana community property law, the Louisiana Trust Code, laws which state that fruits of separate property are community property, family law, marriage contract law, and laws allowing spouses to sign a Declaration reserving the fruits of separate property as separate property.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450

There’s No Place For Rude or Abusive Clients and Customers. Your Comments?

One thing that any estate planning attorney enjoys (or any business owner for that matter) is the satisfaction that comes from helping other people.

In our business (and I'd say for just about any business), about 98% of the clients or customers are fantastic to work with - they are kind, patient, understanding, positive, complimentary, and a joy to work for. However, the other 2% tend to steal time and attention away from the fantastic 98%.

This 2% tend to be rude and abusive to staff, they make unreasonable demands, and they are quick to threaten to complain to a third party.

I suppose these 2% feel  the need to act this way because they think that they must be difficult in order to "get what they want." However, the 2% don't realize that they are losing long term. 

Yes, in the micro short term, the 2% might "win" because the staff will give them what they want to get the 2% of the staff's back. But the 2% will most certainly lose long term because people and businesses will refuse to do business with them...who wants to do business with a jerk?

I'm hoping that this topic addressed this way will help people and their communities realize that it's ok to be nice in business...that's the way to get what you want long term.

Would love to read your comments on this subject, and would hope that this post can have some impact by you sharing it with your social network through Linkedin, youtube, facebook, email, or other social media app.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450