Will Plan

What does Avoid Probate mean?

What does avoid probate mean?

To understand what avoid probate means, you have to understand what probate is.

For prospective law firm clients who want to schedule a free 15 minute initial phone call with Paul Rabalais, go to: https://go.oncehub.com/Paul8

Some basics: Probate, in general, is the court-supervised process of transferring assets in the name of a deceased person to the heirs. In Louisiana, probate is referred to as "a Succession." But because there are different laws, rules, and regulations that apply to different types of assets you might own, I'd like to use an example.

Let's say that Alan and Alice Peterson own five assets:

(1) A bank account;

(2) An individual retirement account (IRA);

(3) A brokerage account;

(4) A vehicle; and

(5) A home.

One die, Alan dies. Alice goes to the bank where they tell her that she still has access to their bank joint bank account. Alan goes to their brokerage firm where she is told that as the designated beneficiary on Alan's IRA, she can produce a death certificate (when she gets it) and the financial institution will transfer Alan's IRA into an IRA in Alice's name. So far, Alice is on a roll.

But when Alice inquires about their joint brokerage account, the brokerage firm tells Alice that the account is frozen, and that Alice and her family must hire an attorney to get the appropriate court orders in order to gain access to the brokerage account funds.

Then Alice discovers from the Office of Motor Vehicles that she cannot sell or otherwise transact the car until she produces the appropriate court order ordering the Office of Motor Vehicles to take Alan's name off the vehicle title.

Then, when Alice starts to inquire about selling the home, she discovers that she can't sell the home until she "completes Alan's Succession," which will clear up the title to the home.

So, even if Alan had a last will and testament, it's the fact that he had assets titled in his name when he died that required his survivors to hire lawyers to complete this court-supervised procedure, even though Alan's IRA "avoided probate."

So Alice and the kids hire a lawyer, spend a few grand or more, take several months or more, to complete the court proceeding and all that goes along with settling Alan's estate.

Years later, Alice dies, also owning five assets. Even though Alice may have had a last will and testament naming an executor, and naming her children as her sole heirs. The kids must now "lawyer up" and go through the court proceeding in order to get Alice's bank funds and brokerage account, and to sell Alice's vehicle and home.

Some people want their survivors to "avoid probate," which means they want to arrange their affairs in a manner so that their survivors will have immediate access to assets, without their survivors having to have assets frozen while survivors hire lawyers and wait on the judicial system to oversee the settling of the estate.

So perhaps Alan and Alice would have, in order to avoid probate, established the "Alan and Alice Peterson Revocable Living Trust." They would have transferred their "probate assets" to their trust, such as their home and brokerage account, while they would have kept the IRA out of the trust since IRA law permits IRA owners to designate beneficiaries of their IRA accounts.

Then when Alan died, Alice, as the trustee of their trust, could sell the home and access the trust brokerage account, without having to go through probate. Things in a trust do not have to "go through probate" when you die. Only certain assets titled in your name require a probate (or in Louisiana, "a Succession") when you die.

After both Alan AND Alice die, then the Successor Trustee so designated by Alan and Alice in the trust instrument, would have immediate access to sell trust assets (like the home, if appropriate), and disburse trust assets to the principal beneficiaries of the trust, without having the traditional attorney and court involvement that is required when you die with assets in your name and a Succession is required.

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

What is a Survivorship Clause in a Will?

What is a survivorship clause in a last will and testament?

For prospective law firm clients who want to schedule a free 15 minute initial phone call with Paul Rabalais, go to: https://go.oncehub.com/Paul8

Quite frankly, it's a clause that is often in wills that no one understands, and is rarely applicable. It's one of those provisions that gets consumers to say something like, "Well I guess this is just more of that legalese that lawyers put in legal documents."

Here's some background: You cannot make a bequest of full ownership of an asset and require that they preserve it for another person. That, under Louisiana law, is called a prohibited substitution.

However, you may make a bequest of an asset to someone, and impose as a condition on the bequest, that they survive you for a stipulated period, which period shall not exceed six months after your death.

Let's say you leave your home to Harold. But if Harold were to die right after you (let's say one month after you), you would not want your home to go to Harold's heirs - you would want your home, rather, to go to Sally. You could leave your home to Harold subject to the suspensive condition that Harold survive you for six months. Then, when Harold dies one month after you die, your home will go to Sally, instead of Harold's heirs.

Since "Joe Public" doesn't, at first glance, understand the terms "suspensive condition" or "survivorship clause", these provisions often cause confusion and rarely are applicable.

One other note worth mentioning: the existence of a six month survivorship clause can hold up the Louisiana Succession, or perhaps even the trust settlement, because the rights of Harold, in our example above, are "in suspense" until the six month survivorship time period expires.

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

When You Look at the Initial Legal Planning Expense AND the Estate Settlement Expense, Which Estate Planning Program is More Efficient: the Last Will Plan or the Revocable Living Trust Plan?

People often ask how much a will or a trust costs. In this post, we look at the overall financial involvement, from implementation until after death, of having a Last Will-based Legal Plan versus a Revocable Living Trust based Legal Program.

For most, there are two different ways you can leave your estate to your survivors - through your Last Will and Testament, or through your Revocable Living Trust.

It is generally less expensive to establish a Last Will based Estate Planning Program because with a Will Plan, you will leave all of your assets in your name. You won't need to re-title your home, your other property, your investments, or other assets into a trust's name. However, when you pass away, your assets will be frozen, and your executor and heirs must go through a court-supervised process to remove your name from your home, investments, and other "probate assets."

When you set up your revocable living trust, and re-title assets in your trust, you are arranging your affairs in such a way that your trust assets will not be frozen when you die. Your trustee, when you pass away, retains thet authority to access, manage, and transfer your trust assets to your trust beneficiaries in the manner you arranged in your trust instrument. In effect, your trust replaces your last will.

While there is generally more cash outlay up front for the legal services necessary to set up a trust versus a will, the overall cash outlay considering the two probates the family must go through when each spouse dies, typically far surpasses the outlay of setting up the living trust and avoiding the two probates.

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

Louisiana Trust Code Rules Regarding Shifting a Trust Beneficiary's Interest in Principal

Many people who put their estate plan in place do not understand the rules regarding the shifting of a trust beneficiary's interest in principal.

Occasionally, people who are putting their estate legal program in order want to make a bequest, in trust, for others - often grandchildren. Since the grandchildren are often young and immature, the grandparents often want to put stipulations on the bequest.

A common request goes something like, "I want to leave $100,000 to my grandchild when I die, but I want it to be in a trust. And if my grandchild doesn't go to college, or does drugs, or goes to jail, then that money will go back to other people I designate."

Well, you can certainly leave $100,000 in trust for another, but there are restrictions on your ability to shift that trust principal to someone else. One such restriction in the Louisiana Trust Code provides that the interest of a principal beneficiary is acquired immediately upon the creation of the trust. Once the grandparent passes away, the trust for the grandchild is created and that trust is for the grandchild only while the grandchild is alive.

What you CAN control is when the grandchild gets the principal. You could give the trustee the discretion regarding distributions of principal to the grandchild. So if the grandchild goes to jail, the trustee could exercise his or her discretion and perhaps never distribute the principal to the grandchild while the grandchild is alive.

Other controls you have include certain powers to direct principal when the grandchild dies. if the grandchild dies with descendants, you can state in the trust that the principal vests in one or more of his descendants. If the grandchild dies without descendants, you can direct who the principal vests in upon the grandchild's death.

And if you do not direct where the principal vests upon the beneficiary's death, then his interest vests in his heirs or legatees, subject to the terms of the trust.

In other words, get good legal help when you are leave a bequest, either through your last will and testament or your revocable living trust, to individuals (such as grandchildren) who you are unsure how they will turn out from a maturity standpoint. Failing to comply with the rules regarding the shifting of a beneficiary's interest in principal can cause all kinds of legal problems for your descendants in the future.

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

Why You Don't Need a Death Certificate to Begin the Louisiana Succession

Here's the typical situation: Survivors of the deceased wait to schedule something with the estate attorney until after the family receives the death certifcates - which always takes either weeks or months to come in. Finally, they sit down with the estate attorney, like myself, and say something like, "Well, before we get started, let me give you a death certificate because I know you will be needing this. Do you want an original or copy?"

Then, I respond to their dismay, "I don't need one."

Death certificates are not typically filed at the courthouse as part of the Louisiana Succession process. While the judge needs proof that the deceased actually died, along with information about whether they were married, where they lived, when the deceased died, and whether they had children, the judge does not need to see a death certificate. These facts are typically evidenced, or proven, by affidavits.

Typically, instead of filing death certificates at the courthouse, two people who have knowledge of the above mentioned facts each sign what is commonly referred to as an, "Affidavit of Death, Domicile, and Heirship."

The statement we often hear from survivors that "It won't do any good to see the attorney because we don't have death certificates yet," is inaccurate. Waiting weeks or months to get the death certificates is unnecessary waiting.

What do you need to get started on the Louisiana Probate (also known as "Succession")? You need the original Will, if one exists, and you need two people familiar with the family circumstances (such as a surviving spouse or adult children) to sign the appropriate Affidavits of Death, Domicile, and Heirship."

In addition, if you can compile a list of assets and debts of the deceased as of the date of death, that would be helpful, but this detailed information typically is needed later, not at the very beginning.

The family WILL need death certificates to, for example, have the executor open an estate account after the judge confirms the executor (or appoints an administrator). And after the judge signs the final Judgment of Possession, which orders third parties to transfer assets to heirs, the heirs will need a death certificate, with this Judgment, before the financial institution will release the funds or investments to the heirs listed in this Judgment.

Since delays are one of the main complaints about probate, it makes sense to meet with the attorney and get started on this process as soon as practical after the death of a loved one, rather than delaying until you receive death certificates, which can take weeks or months to arrive.

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

Will Prepared Through Suze Orman Kit Invalid in Louisiana

I was contacted recently after a father passed away. The adult children were hoping to get their father's estate settled quickly and easily. They mentioned that their father had been diagnosed with pancreatic cancer, that the diagnosis allowed only a short time to live, so he did a "quickie" Suze Orman will to specify how he wanted to leave his estate.

When I heard about the Will, I told myself I needed to see it. The son told me that the Will was three pages long. I said, "Hang up. Take a picture of each page and text them to me." He did.

Whenever I review a Will for the first time, I always look for two things. First, I confirm that the Will meets the validity requirements for a last will and testament. And second, I look at the actual words and terms used in the Will for bequests, appointments, and other ancillary provisions.

In general, it's pretty easy to make a valid will. But the trickery comes in using all of the right terms in all of the right places.

In this matter though, it took me about three seconds to determine that the Will was invalid.

In Louisiana, there are two types of Wills: olographic and notarial. The olographic will is entirely handwritten. This will was typed. The notarial testament is typically typed, but must be signed "at the end of the testament and on each other separate page." Of the three pages, only one was signed.

In addition, to be a valid notarial testament, the notary and two witnesses must sign a certain declaration that is inserted at the end of the testament. In this Will, there was no notary signature, just the signatures of two witnesses.

So, in about three seconds. I discovered two reasons that this Will is invalid. And yet, there was a third problem. For a notarial testament to be valid, the notary and witnesses must sign a declaration that is worded as described in our Louisiana statute. The declaration in the Will must be at least "substantially similar" to the declaration provided in the Louisiana statute. The declaration at the end of this purported Will was not substantially similar to the declaration provided by Louisiana law.

Since the Will was invalid, it didn't make sense to even look at the terms of the purported Will, since they would have no legal effect - at all. It's unfortunate that this man's final wishes to leave his legacy a certain way would not be followed. Instead, state law will determine who inherits his estate.

The moral of this story is that you should be careful about using the "do-it-yourself" estate planning tools that are out there. Many things can and do go wrong when you attempt to take shortcuts in the estate process.

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

Two Types of Louisiana Last Wills: Part Two - The Notarial Testament

In the other post to this two-part series, we discussed the ins and outs of the olographic testament in Louisiana. In this post we address the more common type of testament: the notarial testament.

Mainly since the olographic testament has the requirement that it be written entirely in the hand of the testator, notarial testaments are more common. Notarial testaments are generally type written and computer generated, typically by an attorney.

There are strict formality requirements that must be met for a notarial testament to be deemed valid by a judge in the proper state court. All notarial testaments must be in writing and dated. And the following requirements must be met when the testator knows how to sign his name and to read and is physically able to do both:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and witness shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this __ day of _________, ____.

Note that there are many court cases where judges have been forced to decide whether the formality requirements of a notarial testament have been met.

Note also that there are other notarial testament requirements for circumstances where: a testator is literate and sighted but physically unable to sign; the testator does not know how to read, or is physically impaired to the extent he cannot read; the testator knows how to and is physically able to read braille; or for a person who has been legally declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English.

Because notarial testaments are generally prepared by lawyers trained in the intricacies of estate planning, and can use their experiences to serve their clients, notarial testaments are generally more thorough than the customary olographic testament prepared often by a do-it-yourselfer.

Provisions in notarial testaments typically appoint executors, authorize the independent administration, waive bond requirements for executors, trustees and usufructuaries, leave assets in a testamentary trust for minors, irresponsible heirs, heirs receiving certain government benefits, and to keep property in the bloodlines for more than one generation.

In Louisiana, some notarial testaments bequeath usufruct to a surviving spouse and name naked owners who are entitled to ownership of assets at the termination of the usufruct.

In addition, most notarial testaments address reasonable contingencies, such as what happens if one or more of the executors or heirs predecease the testator.

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

Two Types of Louisiana Last Wills: Part One - The Olographic Testament

In Louisiana, there are only two forms of valid Wills (known by our Louisiana law as “testaments.” The two forms are: olographic and notarial. This post addresses the less popular olographic (some people refer to it as an “holographic” Will).

When we discuss whether a handwritten Will is valid, we must look to the terms of the Louisiana statute that defines and olographic testament. Note that there are many, many court cases where lawyers have argued, and judges have determined, whether someone’s handwritten attempt at a Will is valid, and if so, how it should be interpreted.

Nonetheless, our Louisiana law states that “An olographic testament is one entirely written, dated, and signed in the handwriting of the testator.” The statute goes on to state, in part, what it means to be dated and signed, including the fact that writings after the signature do not make the testament invalid and such writing may be considered by the court, in its discretion, as part of the testament.

Many people think that if they just meet the validity requirements of an olographic testament, then everything will go hunky-dory when they pass away. But those people should think again.

It’s easy to make a valid olographic testament, but problems often surface after the death of the testator because the wording was either insufficient, ambiguous, errors were made, reasonable contingencies were not addressed, or bequests were made outright to people when they should not have due to age or financial immaturity.

The bottom line on Louisiana olographic Wills is that it is possible, if not simple, to write your own Will that would be recognized by a Louisiana court as a valid Will. However, if the reason you attempted to write your own Will was to save some costs today, know that the future costs to your estate and your heirs (both financial and emotional costs) will far outweigh any savings you felt you realized by making your own olographic 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

What Legal Matters to Address When Loved One Dies Unexpectedly

This post describes what estate legal issues typically get addressed after the unexpected death of a loved one.

Many people pass away after a long life due to natural causes, or they pass away after a prolonged illness. The death does not come as a shock or surprise to survivors, and the legal affairs are often in order with trusted loved ones having access to all of the estate information.

However, sometimes death comes completely unexpected, perhaps due to a medical issue (for example, a heart attack) or due to some type of accident. When this happens, questions often instantly arise among the survivors. Questions like:

Did he have his legal affairs in order?

Did she have a will or a trust?

How do we cover funeral expenses?

What did the deceased own and owe?

How will income taxes be handled?

What happens to all personal effects?

How do we deal with the deceased's business?

How do the monthly bills keep getting paid?

Who is responsible for dealing with all of this?

All of these questions that survivors have often lead to a statement, "We need to talk to an estate lawyer."

Perhaps the best reason to talk to an estate settlement lawyer sooner rather than later is because there is so much uncertainty that can be eliminated by talking to an estate attorney that can quickly map out a suggested plan of action to deal with the various estate issues involved.

If you are in this circumstance, make sure you quickly locate the last will and testament or trust of the deceased - the last will needs to be filed at the courthouse.

Although every estate settlement is unique, it often helps when all of the "parties" gather together for a meeting with the estate attorney. The "parties" will include the executor that is named in a will, along with all of the people who will inherit from the deceased.

These parties often have questions and they may be nervous that estate issues will be handled improperly. However, when all of the parties get together with an estate attorney who can lay out a plan for getting all matters addressed, the parties often start gaining peace of mind. When the parties know that communication will flow freely, and there will be transparency throughout the estate settlement process, heirs start to let their guard down because they know that their rights are going to be preserved. It's usually the failure to communicate, and the uncertainty from the failure to communicate, the causes heirs to lose trust in one another, and then relationships get damaged - often permanently.

Even though every estate settlement is different, most start with the family producing the last will and testament, and then the estate attorney prepares and files the necessary court pleading at the courthouse, to get the executor "confirmed." If no last will and testament exists, then the court will often appoint an "administrator" to handle the things that an executor would have handled if an executor was named in a will.

Once the executor is confirmed by a judge, or an administrator appointed by a judge, then that personal representative can gain access to information from third parties regarding estate details, and the personal representative can open an estate account and get access to the deceased's previously frozen accounts.

From there, a good estate attorney will develop a good short and long term plan for dealing with the various estate issues, and few surprises will surface during the process because a good estate settlement plan was created from the get-go.

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

Do Mom’s Heirs Get Money When Dad (With Lifetime Usufruct) Sells Home?

We get this question often. Here's the situation. Mom dies with a last will and testament leaving Dad the lifetime usufruct of her estate, and naming her children as the naked owners. Dad then decides to sell the family home. Do Mom's kids get any of the money from the sale? 

No. They don't. Dad's usufruct will continue over the proceeds of the sale. Mom's kids may have to sign to allow the sale to take place, but they are not entitled to any sale proceeds.

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

When Bequeathing Usufruct, Consider Leaving Naked Ownership in Trust

Across America, people typically leave their estates to their survivors through a living trust (with the goal to avoid probate) or a last will and testament. 

When a married person leaves their estate through their last will and testament, they often either leave their surviving spouse the ownership of their estate or they leave their spouse the usufruct of their estate. One of the concerns about leaving ownership of their estate to their spouse is that, potentially, the surviving spouse could ultimately leave the entire marital estate to someone other than the children (such as, a 2nd spouse).

In Louisiana, some married people write a will and leave the usufruct of their estate to their spouse, in order to protect the children's future inheritance. They leave their spouse the usufruct (often for the lifetime of the surviving spouse), and they name their children as the naked owners. However, this can cause complications under a couple of different scenarios.

When a married person dies after having written a will leaving his spouse usufruct and naming others as naked owners, then a Succession will be necessary after the first spouse dies. All of the naked owners, along with the surviving spouse, are participants (also known as "Petitioners") in the Succession, and all must agree on how Succession matters are being handled and accounted for. Successions can be complicated and, typically, the more participants involved, the more misunderstanding that occurs. In addition, with multiple parties to a Succession, especially a number of naked owners who are concerned about protecting their future inheritance, things can get tense. Sometimes relationships among siblings and their spouses can be imperfect so when they all must participate and agree on all matters related to the Succession, it can get tricky.

So let's say go ahead and assume that the Succession gets completed and, subsequently, the surviving wife wants to sell the home. Because there are naked owners, they all must participate in the listing and selling of the home. The naked owners, in addition to the surviving spouse, must sign all of the real estate closing paperwork, often even if the first spouse to die granted his wife, as usufructuary, the authority to dispose of nonconsumable things. When a surviving spouse sells the home or other property over which there are naked owners, those naked owners often have a false expectation that they are to receive some of the proceeds of the sale of the home or other property. And sibling relationships can make it difficult for everyone to agree on all aspect of the sale of property subject to usufruct.

So when a married person writes a will and leaves their spouse usufruct of their estate, they should consider leaving the naked ownership in a testamentary trust for the benefit of the naked owners, with the surviving spouse as the trustee of that testamentary trust.

It will be easier to complete the Succession after that married person dies because the surviving spouse will be the only participant in the Succession. The surviving spouse will be the only participant because she will continue to own her half of the community property, she will inherit the usufruct of the deceased spouse's half of the community property, and she will be the trustee of a trust which holds the children's naked ownership interest. Now you won't have so many personalities involved trying to settle the estate or Succession.

In addition, under this "naked ownership in trust" bequest, the surviving spouse can sell the house or other property subject to usufruct, without having to get the agreement and signatures of all of the naked owners. In essence, the surviving spouse can sign for the naked owners on the sale paperwork because she is the trustee of a trust which owns the children's naked ownership interests.

While, on its face, the Will may initially appear more confusing when you leave the naked ownership in trust with your spouse as trustee of this testamentary trust, you'll likely be doing your spouse a big favor while also protecting the interests of your children or other naked owners.

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

Collation Explained - Louisiana Estate Planning Law

When someone asks me what "Collation" means, it's typically because they've seen the word referenced in a last will and testament, and they don't know what it means.

This post describes a little history and current application of Louisiana collation law.

Back in the pre-1990's, there was a presumption in Louisiana estate law that parents were supposed to, from an inheritance standpoint, treat their children equally. If a parent made a gift to one child during the parent's lifetime, collation laws required that gift to be considered as an advance on that child's inheritance. 

So, back in the pre-1990's, parents were permitted, in their last will and testament, to dispense their lifetime gifts from collation so that lifetime gifts would not be considered an advance on a child's inheritance.

Then, in the 1990's the Louisiana Collation law changed significantly in a way that reduces the scope and application of collation by limiting the right to demand collation to children who qualify as forced heirs, and collation only applies with respect to gifts made within three years prior to the parent's death.

Now, under collation law, if a child is 24 and not otherwise disabled,  he or she is not permitted to demand collation. And a grandchild is not permitted to demand collation, even if he or she qualifies as a forced heir.

Nonetheless, many attorneys still include a provision in their client's wills stating, in effect, that the client's lifetime gifts are exempt from collation.

I haven't seen or heard anyone around our office discuss a potential collation claim in decades. Collation claims just don't come up much any more due to its limited scope. I suppose, however, it does not hurt to keep the "dispense from collation" provision in Louisiana last wills, even though it causes some confusion because clients have no idea what it means. 

However, now with this post, you know!

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

Deceased Owned Property in Many Parishes: How To Transfer To Heirs in a Succession

This post describes how the real estate of a deceased person, who owned property in multiple Louisiana parishes, gets transferred the right way to the heirs.

We recently started working on a Succession. The deceased lived in Jefferson parish but owned property in several different parishes. He didn't own property in Jefferson Parish, but he owned property in St. Tammany, Tangipahoa, Plaquemines, and St. Landry Parishes. The daughter, who was named the executor of her father's Will, thought she was going to have to travel all around the state to register the children as the new owner of all of their father's property.

I explained the procedure for getting the property transferred as follows:

(1) Succession Opened. The proceeding to open a Succession after someone dies must be brought in the district court of the parish where the deceased was domiciled at the time of his death. In this matter, the deceased was domiciled in Jefferson Parish, even though he did not own a home or other real estate in Jefferson Parish. All court pleadings, petitions, Lists of Assets and Debts, court orders, and all other court documents of the Succession will be filed in the Jefferson Parish Succession Suit record.

(2) Judgment of Possession. At the conclusion of the Succession, the district court judge in Jefferson Parish will sign a court order that we prepare called a Judgment of Possession. We will ensure that all of the various legal descriptions of all of the deceased's different properties around the state are listed on this Judgment of Possession.

(2) Certified Copies of JOP. Once signed, we will request that the clerk of court of Jefferson Parish issue multiple certified copies of this Judgment of Possession (JOP).

(3) Record JOP in Parishes. We will record a certified copy of the JOP in the conveyance records in each parish where the deceased owned real estate. This will show all third parties and title examiners that ownership has been transferred from the deceased to the heirs (or, since there was a Last Will, to the legatees (children)).

In this matter, the deceased also owned real estate in Mississippi. I told the family that the Louisiana Succession would not transfer the Mississippi property. The family must hire another law firm in Mississippi to go through the ancillary probate in Mississippi to transfer the Mississippi property from the deceased to the heirs.

Many people who have property in multiple states transfer those multiple properties to one Living Trust so that no probate proceedings are necessary after the death of the Trust Maker.

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

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