Baton Rouge Succession

What is "The Court?", an Executor Asks?

I was talking to a colleague recently. He is the executor of his father's probate/Succession. His father had died years ago and there was still an account in the father's name that needed to be accessed and distributed to the children.

So the executor took it upon himself to gather up some paperwork (a copy of the Will and a death certificate), and he trucked on down to the place that had his father's account.

As I knew he would, he quickly ran into a dead end. He was told, "In order to access these funds, we need legal documents certified by the court within the last 90 days." 

He got frustrated because he did not know what "the court" meant. Should he go to the Supreme Court, should he go to the Clerk of Court? Should he just walk into a courthouse downtown? He was given no direction as to where or what "the court" was.

He spend two long days going to 12 different offices before he finally got what he needed. He was told that he needed certified "Letters Testamentary." But that was the wrong instructions. Letters Testamentary pretty much went away 15 years ago. Really what he needed were copies of the "Letters of Independent Executorship," certified by the parish clerk of court within the previous 90 days. 

The Louisiana Succession procedure is typically frustrating to the lay person, particularly when they try to do things themselves or even when they try to make sense of the archaic and inefficient probate rules.

When a "Letter" is not a "Letter" in a Louisiana Probate or Succession Proceeding

I was talking to the child of a deceased mother recently. Mom died about a month ago and the Son was, on his own, trying to settle Mom's estate. Mom had two bank accounts, three certificates of deposit, and an investment account. The total of Mom's estate was about $500,000. 

When the son went to the banks and the brokerage firms, the son was told that Mom's accounts were frozen, and the son was told, "You need to bring us Letters Testamentary. An attorney can give you that."

So the Son calls my office and talks to me. He asked me, "I'm settling Mom's estate and they are telling me I need a Letter from an attorney so that I can access Mom's accounts. Can I come by your office and get that Letter?"

So, here's the explanation that you'll hear from me when you talk to me about getting a "Letter" after a loved one dies in order to access the accounts:

  • Letters Testamentary are court documents. When Mom died, she left a Last Will and Testament naming her son as the executor. When Mom dies, Son has no power initially. Son must hire a lawyer, have a number of court pleadings prepared and signed by multiple parties, and this Petition to Confirm an Executor gets presented to a judge. If the judge sign the Order confirming the Son as the Executor, the clerk of court will issue certified copies of "Letters Testamentary" (also known as "Letters"). This is what the executor needs to present to banks, brokerage firms, and other third parties so that funds and investments will be removed from Mom's frozen account and placed in a new Estate account.
  • Letters Testamentary are Never Used Anymore. Even though the bank insists on getting "Letters Testamentary," the banker is using old and incorrect terminology. Nowadays, executors can be "independent executors" which means that while the probate is still necessary, every single action that an independent executor need take (such as paying the water bill or selling a vehicle, need not be approved first by the judge who presides over the Succession proceeding. Once an independent executor is confirmed as such by the judge, the clerk of court issues documents called "Letters of Independent Executorship." 
  • If No Last Will. If a person dies with no last will and testament, then the court appoints an Administrator, or, if all heirs agree, and Independent Administrator, and the parish clerk of court issues Letters of Administration or Letters of Independent Administration.

Sound confusing? It's confusing if you don't deal with this stuff on a daily basis. If you are in a situation where you are in charge of settling an estate, don't go it alone. There is too much at risk - including the relationships of family members left behind, and not to mention the legal costs that are involved when you make mistakes and have to start all over again. Get some good help from an Estate Administration attorney who has decades of experience helping families get their loved ones' estates settled. You'll be glad you did.

Surviving Wife Needs To Complete Husband's Succession and Wants Children To Avoid Probate

I am currently working with a woman from Baton Rouge. One of her children lives in New Orleans and the other lives in Washington. One of her friends mentioned my name to her so she came in to get all of her estate matters settled. She mentioned that her main concern was she wanted to make things easy for her children when she dies - she does not want them to have to pay lots of taxes or go through a bunch of bureaucratic red tape in order to inherit her assets.

Her biggest concern was the family farm which she owned in state outside of Louisiana. She told me that her husband had passed away a few years earlier. I asked her if she had completed the Succession of her husband after he died a few years ago. She said she had not.

I knew the first order of business for her was to complete her husband's Succession. I told her that her home could never be sold until her husband's Louisiana Succession was complete. I told her that the home was still titled in the name of both her and her husband, and the Succession would involved us preparing the necessary court pleadings, having all the court documents signed by her and her children, and then filing all of the court documents at the courthouse and asking a judge to sign the necessary court orders ordering that the home be transferred out of her husband's name and into the names of the wife and their children.

She had pulled out what she thought was his last will and testament. It was dated in 1970 but it did not have the necessary signatures on the document, so it was invalid. We are forced to treat the husband's Succession as if he had no Will - intestate. We discussed how she would continue owning her half of their home, and that under the intestate laws, she would inherit the usufruct of her husband's half of the home, and their children would be named the "naked owners" of her husband's half of the home.

Because she wants to make things as easy as she can for her children, she is setting up her own estate legal program so that her children will avoid probate in two different states when she dies. Had she not set things up this way, her children would have been forced to go through both the Louisiana probate after she dies, and also another probate in the state where her farm property is located.

We also discussed her potential nursing home situation. She is fairly convinced that she will never reside in a nursing home, because neither she nor her children want her to be in a nursing home. She has a few dollars that will help her get private care in her home if she needs it. But, like she said, just in case, we titled her property in the right kind of trust so that if she goes into the nursing home in the future, she will not be forced to spend her money and sell the farm to pay for nursing home costs.

It's always rewarding to work with someone who knows that their affairs are in a mess, and work with them so that they have peace of mind to know that everything is in order and matters will be easy for their surviving family members. If you want that feeling that things are all in order, give us a call at 866-491-3884

Set Up Your Estate Planning Legal Documents To Make Car Title Transfers Simple at the Louisiana Office of Motor Vehicles After You Die

There's nothing worse than forcing your surviving family members to go through lawyers, courts, and judges just to be able to sell your vehicle or put your vehicles in their name. But there's a not too well known secret that you and your family can take advantage of to make it easy for your surviving family members to put your vehicles in their name.

According to the Louisiana Office of Motor Vehicles, you can transfer a vehicle of a deceased owner if you have a photocopy of the deceased's death certificate, and you also have a copy of the deceased's last will. The deceased's last will should have a particular bequest of any vehicles owned at the time of death.

Example. Dad died with a last will and testament which stated, "I leave any vehicles that I own at my death to my son, Peter." After Dad dies, Peter brings a copy of Dad's death certificate and a copy of Dad's last will to the Louisiana Office of Motor Vehicles. Peter will leave the Office of Motor Vehicles with new titles in Peter's name - no probate, no Succession, no lawyers, no courts, and no judges involved.

Make sure when you set up your estate legal program that you cover all of the details necessary to make things really simple for your family - including how your vehicles will be transferred after you pass away. Your family will thank you for it.

What is an Executor or Administrator of a Louisiana Succession: 7 Questions and Answers

What is an executor?

An executor is the person named in someone's Last Will and Testament whose job it is to work with the court system to have the assets of a deceased person transferred to their heirs.

Example. Pete wrote a Will leaving his entire estate to his three children. In Pete's Will, he named his oldest child, James, as the executor his Will. When Pete dies, it's James' job to hire an attorney and oversee the Succession or Probate court proceeding to make sure that Pete's estate gets managed correctly and that, ultimately, Pete's three children inherit Pete's estate at the conclusion of the Succession proceedings.

What is an administrator of an estate?

Sometimes people die without ever having written a Will, and a Succession is necessary to transfer the assets that are in their names, to their heirs. Often, the proper Louisiana court will appoint an Administrator to manage the assets of someone who died without a Will. The Administrator's job will also be to follow all of the court rules and see to it that the assets of the deceased ultimately get transferred to the heirs. When someone dies without a Will, state law dictate who inherits, so the Administrator must work with those people throughout the Succession court proceedings.

Example. Seymour died without a Will. Seymour had three children, but one of his children predeceased Seymour. Seymour's predeceased child had five children. After Seymour dies, one of the grandchildren quickly hires an attorney and petitions the court to appoint her as the Administrator of Seymour's Succession. The court appoints the 19 year old grandchild to be the Administrator of Seymour's Succession. The grandchild then will gain access to all of her grandfather's assets while she works with attorneys and the rest of the heirs to manage the estate and ultimately, have a judge order that assets be transferred to the heirs that state law provide that the estate must be transferred to.

What is the difference between an Executor and an Administrator?

Actually, the roles are similar. When someone dies with a Will, the person who wrote the Will named an executor, and the executor must work with heirs and attorneys to manage the estate as it goes through the court process. When someone dies without a Will, then obviously, an executor of a Will was not named, so the proper court must appoint an Administrator to manage the estate under similar rules that an executor would manage an estate.

What is an Independent Executor?

If the Will stated that the executor may act as an "independent executor," then the executor will be permitted to take certain actions that are involved in completing a Succession without having to get a judge's approval in advance.

Example. Jeff's Will stated, "I appoint my daughter, Margaret, as executor of my Will. My executor may act as an independent executor." If Margaret were simply an executor - and not an independent executor - she would need to formally petition a judge to get express written permission from a judge to sell Jeff's house, stock, car, or even his personal items, after Jeff died. This can be a real nuisance and a financial burden when Margaret tries to settle Jeff's estate. But since Margaret is an independent executor, a Succession is still required, but Margaret can take certain actions (like selling estate assets) without first having to petition the court to take that action.

Virtually every Will written in Louisiana these days should authorize the executor to act as an independent executor. If a Will written in Louisiana does not have these express provisions authorizing the executor to serve as an independent executor, then either:

  • the Will was written prior to 2001 when the "Independent Executor" position was created by state law; or
  • the attorney who prepared the Will is shamelessly ill-informed.

What if the Will does not authorize the executor to be independent?

There's hope. If the Louisiana Will does not authorize the executor to be an independent executor, then, generally speaking, all of the heirs can sign an Agreement authorizing the executor to serve as an independent executor. But it must be unanimous. A few other details exist that must be complied with but your Succession Attorney can help you verify whether the Succession you are working with can operate under the independent administration rules.

What is an independent administrator?

If the person who died had no Will, then the court will appoint an Administrator of the Succession. An Administrator must get every action approved by the judge. However, if all of the heirs sign an Agreement allowing the Administrator to be an Independent Administrator, then the administrator can act under the simpler "independent administrator" court proceedings. Every court-appointed Administrator should seek to be appointed as an Independent Administrator.

Does having an Independent Executor avoid probate?

No. Even if there is an independent executor or an independent administrator involved in a Succession, the Succession is still required. There must be court proceedings to get the independent executor or administrator appointed or confirmed. The assets, liabilities, and estate expenses must be documented and valued, the heirs must sign off on the plan for distribution, and accountings are necessary. Judges will still need to get involved to sign various court orders, and court orders will have to be distributed to various heirs, financial institutions and other third parties to "un-freeze" the estate assets to have them managed and ultimately distributed to the heirs.

Completing a Succession When a Child Is Already a Co-Owner of Property?

     Hey, I was working with a family recently, the parents had both recently passed away and the four children were getting together and they retained us to handle all the succession, or probate, matters. They had a question about a particular piece of property that their parents had owned.

     During the parent’s lifetime, the parents had donated a 10% share in that property to one of the children. Now that the parents have died, and all the parent’s assets are going to the children equally, the children were asking me who ends up with this piece of property? Well, as you might imagine, the child who owned the 10% will continue to own the 10% and then the parents 90% would wind up being transferred equally to the four children. If you do the math, the child with the 10% would continue with the 10% and each of four children would inherit 22.5%, which is one-fourth of the parents 90%. The child that already had 10% winds up with 32.5% of the property and the other three children each own 22.5%.

     You might figure how does that work because it is a house. How can you own a 22.5% interest in a house? Well, people can have an undivided interest, which means that each child, at least those three, own a 22.5% undivided interest in the whole house.  There is not particular tracks or rooms for each child. Each child has an undivided interest in the whole home. I

     If you have a situation like that and you want to get it all straight, feel free to reach out to us and we can have a conversation together.

Should Grandparents Include Step-Grandchildren In Their Estate Legal Program?

     Hi, I was having a conversation last week from a couple out of Gonzales. They were a little worried because they didn’t know whether they should include their step-grandchildren as part of their estate planning legal program. They had 3 children, one of the children had married a few years ago and the child didn’t have any children of his own. But, the child married a woman who did have 3 children of her own.

     The couple wanted to leave something to their grandchildren, but they didn’t know whether to leave things to their step-grandchildren. We talked about it a little while and really the way it always shakes out is it’s a personal preference. Some people are very close to the step-children of their children and they like to include those step-children as part of their overall Estate Planning Program. Other people, however, feel different. Some people say, well that step-grandchild, he or she has other grandparents and we’re not real close to those step-grandchildren. So, let’s not include those step-grandchildren as part of our Estate Plan where we provided something to get our grandchildren off to a head start. Really a personal preference there.

      If you want to talk about the right way, the wrong way, to structure that you may want to give us a call and we can schedule a conversion to talk about the best way to leave things to your family.

Who Should Sell The Home: The Executor or the Heirs?

We've been dealing with a probate matter In East Baton Rouge Parish for a few months now. Dad died. Dad owned a home, some bank accounts, some investments, and a vehicle - pretty normal stuff. Accounts were frozen immediately when Dad. Dad had a Last Will and Testament naming Daughter as the independent executor. The Will leaves Dad's estate to eight different heirs.

Dad's house now needs to be sold. People are asking me what's the easiest way to get Dad's house sold. I told them that they have two options:

  1. Keep the estate open and have the one Independent Executor sell the home on behalf of the estate. When the Independent Executor sells the house, the check will be payable to "Estate of Dad," and Daughter, as Independent Executor, will deposit the check into an Estate account that she establishes. Then, we prepare the necessary accounting and get the proper court judgments to allow those estate funds to be disbursed to the eight different heirs in the proper proportions.
  2. Close out the estate, get the final judgment transferring the house to the eight heirs, and then having the eight heirs list and sell the house. This process settles the estate quicker and transfers Dad's assets to his heirs, but all of the eight heirs, as the new co-owners o the home, will have to participate and sign off on the listing of the home, the negotiation, and all eight heirs will have to participate in the closing of the home when those documents are prepared and need to be executed.

In this instance, it was a pretty obvious choice. The decision made, and the one we are moving forward on, is to keep the estate open, have the independent executor sell the home by herself, and then go through the process in a few months (or perhaps even years - depends on how long it takes to complete the sale) go through the final probate process of preparing the necessary accountings for the court, and petitioning the judge to sign off on the final court orders so that the executor and the financial institutions are ordered to release remaining funds to the heirs in the proper proportions.