Bequest of Percentages

Prohibited Substitution in Louisiana Last Will is Null

The Prohibited Substitution estate planning rules in Louisiana are a trap for the unwary. When someone writes a Louisiana last will and testament, or a trust, in a way that it contains a prohibited substitution, then the bequest is null.

So, what is a prohibited substitution? Well, here's an example of a provision in a Will that would be interpreted as a prohibited substitution, "I leave ownership of X to Person 1. I require that Person 1 preserve X and, when Person 1 dies, I require that Person 1 leave ownership of X to Person 2."

You cannot donate or leave something in full ownership to one person with a charge to preserve it and deliver it to a second person at the death of the first person. You would be depriving the first person from the power of testation.

A prohibited substitution might be something that I'd see in an olographic testament. Some people attempt to write their own wills in their own handwriting, but they mess up the provisions of the Will. People in Louisiana sometimes argue that they can write their own valid will, but they often fail to realize that the wording that they put in their will can make their loved one's lives miserable.

A prohibited substitution is null - it's as if it was never written. The bequest to the first person is not even valid.

There are a couple of alternative you can use if you want to leave an asset for the benefit of someone, and then when that someone dies, have the asset pass along to another someone. One way to do this is to use a trust - check with your estate planning attorney to help you do this the right way. Another option that might be feasible is to leave usufruct of an asset to someone, and name the naked owner to receive the asset at the termination of the usufruct. Again, check with your estate planning attorney to make sure that you understand the pros and cons of leaving things in trust or in usufruct.

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 Required in Louisiana to Become an Independent Executor or an Independent Administrator?

How To Leave a Bequest To Charity

Not everyone wants to leave part of their estate to charity. But some do. And for those who do, there can be a right way and a wrong way to leave assets to charity. The following are two things to consider when leaving assets from your estate to charity.

(1) Designate the Right Organization. There a many charities out there. Some people want to leave part of their estate for cancer research, heart research, or to an organization that helps pets. But each of these causes has numerous organizations. And some of the larger organizations have local, state, and national organizations. Make sure you research your potential charitable bequest and leave it to the right organization.

(2) Restrict Your Bequest? Some people are not aware that they can restrict their charitable organization for a specific purpose. For example, a university alumni who studied engineering may want to restrict his bequest to the university to support scholarship for students pursuing an engineering degree. You do not have to leave your bequest to the general fund of the church, school, or other charitable organization. Know that you can restrict what your bequest will be used for, so long as it is in furtherance of the organization's charitable purpose.

Most serious discussions regarding leaving part of an estate to charity involves making tax-smart decisions. For example, someone with an IRA along with other assets may choose to name a charity as the beneficiary of the traditional IRA since income tax has not been paid on these funds, and if these funds are left to a charity, then no income will need to be paid on the distribution to charity. So some people leave their charitable bequests from their IRA or other pre-tax retirement account.

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.

Leaving Assets To A Louisiana Special Needs Trust

Special Needs Trusts enable people, typically parents, to provide for another (typically, their child), without jeopardizing the government benefits that the special needs child is receiving.

There is typically a problem when parents bequeath assets to their special needs children. When the child inherits in his or her own name, the child could lose valuable government benefits that the child is receiving. In order to originally qualify for these benefits, the child had to be "means-tested." Often, the child must have and maintain no more than $2,000 in their name to receive these benefits. If the child receives an inheritance, the child may lose these valuable benefits.

So many parents leave assets for the special needs child in a third-party Special Needs Trust. When done properly, the trust can enhance and enrich the child's life while preserving the government benefits that are means-tested.

In general, there are certain provisions that should not be included in a trust that you leave behind for your special needs child.  The trust should not authorize the trustee to make broad distributions to or for the health, education, maintenance, or support of the child (known as the "HEMS" standard). 

In addition, the trust must not allow the child/beneficiary to compel distributions to himself or herself.

However, there are a number of permissible distributions to or for the benefit of the special needs child, including distributions for medical needs, travel, recreation, home improvements, auto expenses, and cleaning, to name a few.

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.

Churches and Charities Use Estate Planning To Help More People

Next week I'll be delivering a check for more than $100,000 to a church. I just completed the probate of someone who left a percentage of the estate to the church. I know that the church is going to help many people with this bequest.

It reminds me of how, over the years, a number of churches and charities have asked me to speak to groups of members about how  the tax law is set up to give people a big tax break when they leave a portion of their estate to their church or favorite charities.

Churches and charities don't do enough of this education. I find that, when a church or charity educates its members and asks the right way, that people want to help. People would like to see their dollars help their local community more than sending those dollars off to Washington, D.C.

If you are a church or charity leader, make a commitment to education your base about the benefits of making a church or charity part of an overall estate planning program. If you exist in South Louisiana, give me a call and let's have a talk - in the right circumstances I provide that education to groups for free. But you don't have to use me - just start. You'll be helping your organization and your community.

Paul Rabalais
www.RabalaisEstatePlanning.com
Phone: 866-491-3884
Email: paul@RabalaisEstatePlanning.com

Sell or Distribute Assets When Someone Dies?

When someone dies with assets, whether those assets are in trust or not, the people in charge must make a decision to either sell (liquidate) the assets, or distribute them in their same form to those left behind.

When someone with a living trust dies, the Successor Trustee is typically heavily involved in that decision. If it is appropriate to sell assets, then the Successor Trustee will sell those assets, the proceeds of the sale will be payable to the Trust, and the Successor Trustee will deposit those funds into a trust account for subsequent disbursement to the beneficiaries of the trust. Trustees will sometimes sell real estate (a home, for example) that the survivors have no use for. Successor Trustees may also sell mutual funds or other investments and disburse those to beneficiaries.

On the other hand, sometimes it makes sense for the Successor Trustee to simply distribute the assets to the beneficiaries in the same form. Occasionally, a family has an emotional attachment to stock that a parent owned, and the beneficiaries will receive the stock in their own name.

Sometimes the family will want to continue owning real estate owned by the deceased (or the deceased's living trust). The Successor Trustee, immediately after the death of the Settlor, can transfer the real estate to the beneficiaries, outside of probate, so that each beneficiary owns an undivided interest in the real estate. It's also not uncommon, if the real estate was not owned in a limited liability company, for the beneficiaries to form an LLC and put their undivided interest in the property into the LLC. This could limit their liability exposure. Each beneficiary would then own a membership interest in the LLC.

So there are lots of decisions, each with tax consequences, that must be made when someone with a trust dies. Note that if there was not living trust, then the executor of the Last Will has similar decisions to make, but the actions of the executor are under the scrutiny of the judge that is assigned to oversee the Succession judicial proceeding. It's generally easier to administer a trust after a Settlor dies than it is to administer a Louisiana Succession which requires extra judicial processes and supervision. 

Paul Rabalais
Louisiana Estate Planning Attorney
paul@rabalaisestateplanning.com
Office phone: 866-491-3884

Seven Common Uses For Trusts

People often mistakenly believe that trusts are for rich people. But you're about to find out that the trusts are used these days by all classes of people, and in some scenarios, trusts can benefit the middle class more than they can benefit the wealthy.

The following are seven common reasons people in Louisiana use trusts:

(1) Avoid Probate. Probably the most common reason nationwide why people use trusts. When you die with assets in your name, whether you have a last will or not, your assets are frozen. Your executor and your heirs will hire attorneys who will guide the family through the government-supervised probate (also called "Succession") process. Most people believe that this proceeding is too burdensome, costly, time-consuming, and just an overall pain in the behind. In some cases, it tears families apart. You can establish your revocable living trust and name trustees and beneficiaries of your trust, re-title assets into your trust while you are alive, so that when you die, your trustee disburses your trust assets to your beneficiaries, all outside of the government and legal system interference.

(2)  Avoid Nursing Home Poverty. The biggest threat to many people's life savings these days is not taxes or probate, but long term care expenses. With people living longer, if you own assets and need long term skilled care, you will be forced to pay for all of your own care out of your own savings until you have less than $2,000 remaining. If you work with the right people and set things up the right way, at the right time, and you get it right the first time, then you can protect your home and life savings from a forced spend-down in the event you need long term care in the future.

(3) Protect Irresponsible Heirs. Many people we work with want to leave an inheritance to their children or grandchildren, but they fear or they know that leaving a lump sum to certain individuals will enable them to squander the inheritance and spend it on the wrong things. You can establish a trust so that when you die, the inheritance for the financially immature heir can be doled out to him or her over time, or perhaps provide for a monthly stipend, or provide that someone else would have the discretion to determine when the heir is financially responsible enough to handle an inheritance. 

(4) Blended Family Situation. The biggest worry about blended families and estate planning is that when the first spouse dies, the worry is that all of the assets will go the surviving spouse. And then when the surviving spouse dies, all assets will go to the surviving spouse's children. The children of the first spouse to die won't get a penny. If you are a spouse in a blended family situation, you can establish a trust so that when you die, your assets are available for your spouse, but when your surviving spouse later dies, remaining trust assets go back to your children. This helps blended families protect assets for the right people.

(5)  Special Needs Trust. If you leave assets outright to someone who is getting government benefits, then the inheritance you leave them may get them kicked off of their benefits. By leaving the inheritance to what is commonly referred to as a "Special Needs Trust," you can arrange things in a way so that your heir continues to receive the valuable benefits, but also benefits from the inheritance that you left them the right way in a trust.

(6) Minors. Don't ever leave anything outright to a minor. When you leave life insurance or part of an estate to a minor, then that inheritance, while the child is a minor, must be directly supervised by a judge, and a judge must approve every expenditure of the inheritance on behalf of the minor, and then when the child turns 18, the remainder of the inheritance gets dumped in the child's lap. You can set up a trust so that you name a trusted friend or relative, or perhaps a company, to be the "Trustee" of a trust for the benefit of your minor child or grandchild. This will further make sure that what you leave to the minor is used for the right reasons outside of government interference, and is doled out the right way as the minor gradually turns into an adult.

(7) Avoid Taxes. Some people set up trusts to avoid taxes. The wealthy often establish trusts to move money from their "taxable estate" to an arrangement whereby assets are "out of the estate." It is important to note, however, that this estate tax affects only a small number of families. When an individual dies with an estate of less than $5.5 million, the estate is not required to file a federal estate tax return. Married couples can double the amount they can protect.

If You Don't Want To Leave A Windfall

I was working with a couple recently that had done well during their lifetime, and they wanted to benefit several people and family members when they were gone. But they specifically stated that they did not want to leave people a "windfall."

They were leaving a significant sum to a number of different people but they told me that they wanted to leave these people, "5% each year so  they get it over 20 years."

Now I've seen many trusts written in a way so that it says that the beneficiaries get 5% per year. But this is not often the intent of the person establishing the trust.

In short, of the beneficiary gets 5% of the trust principal each year, then the principal will never fully be paid out. Instead, trusts often should be drafted in a way so that the beneficiary receives a fraction of the trust distribution each year. For example, in the first year, the beneficiary receives 1/20th of the trust principal. In the second year, the beneficiary receives 1/19th of the balance of the trust principal. In the third year, the beneficiary receives 1/18th of what's left, and so on and so on. This formula provides for generally equal distributions of all trust principal over a period of 20 years.

There is an unlimited number of ways that you can leave an inheritance to an heir without them getting a "windfall" that they would blow. This is just one method. You just need to make sure that the trust language is consistent with your intentions. 

If you live in Louisiana and want to simply start a conversation about protecting your estate, call our toll-free number at 866-491-3884.

Louisiana Parents Want Different Allocation to Their Four Children

Met with a couple in our Baton Rouge estate planning office today. They lived in Gonzales. They has a number of different rental properties throughout Ascension Parish and East Baton Rouge Parish and Livingston Parish.

The couple has four children. Their son works in their rental property business and handles all of the books for them. Their second oldest child has had substance abuse problems and has caused the family lots of grief.

One of the things that they wanted to accomplish was to set up an estate legal program so that after both the husband and the wife died, that 60% of their estate would go to their son in their rental business, and the child who had the substance abuse problems would only get 5% of their estate, and the 5% would remain in the trust until the child proved that he was clean and sober to his three siblings.

The couple feared that if their drug-abusing child got her hands on any money when the couple died, that the money would simply be used to support their daughter's drug habits. So, this was a scenario where we helped a couple in several different ways:

  1. The drug-abusing child will not get a lump sum handed to her. She will have to prove that she is clean and sober before she gets a nickel;
  2. They made the proper allocations to the four children to reflect how much certain children have helped them over the years;
  3. Their estates will not have to go through the Louisiana probates when they die because certain assets will be held in trust, bypassing the probate process;
  4. They won't have to sell any of their rental property if they go into a nursing home since they are setting their legal affairs up in a way so that their "Countable Resources" for Long Term Care Medicaid purposes are minimized; and
  5. Their responsible son who helps them manage and account for their rental property will have the authority to manage things if the couple becomes incapacitated or when they die.

If you live in Louisiana, whether it's in Metairie, Covington, Baton Rouge, Lafayette, Lake Charles, Monroe, Alexandria, or Shreveport, and you have particular family circumstances and you want to make sure that you have a simple but thorough estate legal plan to preserve all that you've worked for, give our office a call at 866-491-3884 to start a conversation with an estate planning attorney who - I guarantee - will put your mind at ease.

Paul Rabalais

How To Keep A Child From Blowing A Large Inheritance

I was working with a Lafayette, Louisiana couple recently. They had one child - a daughter. The couple had worked hard to build a business together while they were working. They were successful - build an estate that consisted of millions of dollars of net worth.

They acknowledged to me that they had spoiled their daughter and enabled her to get used to a lifestyle that was "spend now - worry about paying for it later." They feared that if they had an estate planning program that dumped these millions into the daughter's lap, that it would all be gone six months later.

The couple has three grandchildren from this daughter and the couple is really worried about the future well-being of these grandchildren. They were looking for guidance from me on how they should leave their estate to their family. I knew I did not want to tell them what to do - I wanted to give them options and put them in a position where they could make the best informed decisions for their family.

We discussed all of their options. Here's what they came up with. After couple both pass away, they will leave half of their estate for the benefit of their daughter, and half of their estate for the benefit of their three grandchildren. And they were specific about how they were leaving their estate to their descendants.

  1. Amount for daughter. The daughter will not get her inheritance in a lump sum. She will get an annual distribution for each of the five years after the couple is gone. Then, she will receive the remainder of her share in five year intervals. This will prevent the daughter from blowing her inheritance all at once.
  2. Amount for grandchildren. After the couple dies, the amount for the grandchildren will be held in trust. A trusted professional will serve as the trustee, spending the money as needed for the education and well-being of the grandchildren. The grandchildren will get their inheritance in stages until the last distribution at age 50.
  3. Revocable Living Trust. The couple does not want their to be court proceedings when each of them dies, so we are setting up their estate in a revocable living trust so the typical delays and costs associated with probate are avoided when they die.

The decision of what to do with this couple's estate had been bothering them for quite some time. Now they know that their daughter will not be able to blow her inheritance, and they know that they have provided that their grandchildren's education will be paid for, and their grandchildren will be able to get a much-needed head start financially on their lives. They were also pleased to know that, indirectly, they were also providing for their future great-grandchildren that do not yet exist.

 

Blended Families Have At Least Two Major Estate Planning Issues

Yesterday I met with two different sets of couples, both of whom where involved in blended families. Each spouse had children from a prior marriage. Whenever we set up an estate planning legal program for a blended family, there are always special issues that we have to address. But in every blended family estate plan, we seem to deal with two major issues.

We Want To Protect Each Other

Many spouses involved in a blended family situation fear that when their spouse dies, the spouse's children will force the surviving spouse out of the house - and the surviving spouse will wind up on the street. Or, they worry that the children of the first spouse to die will badger the surviving spouse for "their inheritance."

Often, the relationships can be strained when a parent remarries. The children fear that the new spouse is in the marriage for the wrong reasons - like money.

I worked with one blended family. The spouses were 17 years apart in age. So, the children of the older spouse were not much younger than the new spouse. The older spouse wanted to make sure that when the older spouse dies first, his children receive most of their inheritance right then. The older spouse did not want his children to have to "wait" to receive their inheritance until after the younger surviving spouse died. So, we set up a program so that the children of the older spouse will receive a significant part of their inheritance when the older spouse dies.

The commonly referred to "I Love You" last will may not be appropriate for many married couples. The "I Love You" last will simply leaves everything to the surviving spouse. Some couples in a blended family situation worry that if everything is left in outright ownership to the surviving spouse, then the surviving spouse will leave everything to the children of the surviving spouse - excluding the children of the first spouse to die.

So, some blended families use trusts so that when the first spouse dies, the assets of the first spouse to die are placed in trust. Perhaps the surviving spouse is the trustee of that trust. Perhaps the surviving spouse can spend those assets for the surviving spouse's health, education, maintenance or support (the common HEMS standard). When the surviving spouse later dies, the assets revert back to the beneficiaries of the first spouse to die (often, the children of the first spouse to die).

Want To Protect The Children

Many blended families worry that there will not be a "fair" distribution of assets after both spouses die. But different people have a different definition of what is "fair".

Example: William had two children. Sylvia had three children. They married later in life and created a blended family. The following are some examples of how they could leave things after both spouses die:

  • Equal by heads. Perhaps they think "fair" is leaving whatever they have after both spouses die five ways equally.
  • Equal by family. Perhaps they think "fair" is leaving William's "half" to his two children, and Sylvia's "half" to her three children.
  • Let the surviving spouse decide. Perhaps the couple will want to protect the surviving spouse by leaving all to the surviving spouse, and allowing the surviving spouse to later decide how assets should be divided after both spouses die.
  • Perhaps the first spouse to die (let's say that's William) leaves his assets to a trust and permits Sylvia to "use" these assets during her lifetime, but when Sylvia dies, the remaining trust assets go back to William's children. And, of course, Sylvia will leave her assets to her children.

While other important legal issues exist when blended families set up their estate planning legal program, providing for the well-being and the financial security of the surviving spouse, but also providing for a "fair" distribution to the two sets of children, are two issues that must be address the right way to make sure chaos and conflict is avoided later.

 

Whether To Leave Percentages or Specific Amounts To Your Heirs or Beneficiaries

Was working with a family today from Metairie who wanted to leave a bequest to many difference grandchildren, great-grandchildren, and even certain step=grandchildren. They also wanted to leave the bulk of what they had to their five children when they died.

They asked me whether they should leave a specific amount to these descendants who were at least two generations below them (say, for example, $25,000 to each one), and leave the rest of their estate to be divided equally among their five children. We discussed, however, the alternative of leaving a large portion (say, for example, 75% to be divided equally among their five children, and leaving the remaining 25% to be divided equally among the specific grandchildren and great-grandchildren that they wanted to benefit.

These kinds of estate planning decisions can be tricky. Generally, if someone wants to leave others a small amount, designed primarily to acknowledge the recipient, we usually see them leave a specific dollar amount to those beneficiaries or heirs. This is, perhaps, a simpler way to acknowledge a recipient. It gets more complicated when you leave each of several people 1% or 2% of your estate - the recipient might want to review accountings to make sure they are getting the correct amount. But if you leave someone a fixed amount like $10,000, it does not matter how large the overall estate is, the recipient will get his $10,000, whether the overall estate totals $300,000 or $3,000,000.

If you are wanting to leave each of several people a significant amount of your estate, then perhaps it's easier to leave each of them a percentage of the overall estate. For example, if you want to leave a substantial bequest to your two children and your three grandchildren, then perhaps you would leave 20% of your estate to each of the five. If, for example, you leave $200,000 to each of your three grandchildren, and leave the balance to be split among your two children, and if your estate does not exceed $600,000 when you die, then your children will get nothing because the specific bequests ate up the entire estate.

Your decision to leave specific dollar bequests versus a percentage of the estate is both important and tricky. Your estate will likely fluctuate in value from the time you put your estate planning legal program in place, until the time you pass away and your program plays out. This is a good reason to review your estate planning program every few years and, if necessary, work with your estate planning attorney to keep it current.