Independent Administrator

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

The Louisiana Independent Executor

In 2001, Louisiana law first authorized the independent administration of a Succession. Prior to that time, any act that an executor or administrator took in the administration of a Succession was required to be approved by a judge. If the executor wanted to pay a utility bill, it must have been approved by a judge. If an administrator wanted to sell the clunker vehicle for $500, it had to be approved by a judge in advance of the sale. If an executor wanted to sell the home of a deceased person, a burdensome amount of legal advertising and judicial approval was required to sell the home. It made the administration of a Succession very difficult, time-consuming, and expensive.

Now, Louisiana allows executors to be "independent executors." And Louisiana law allows administrators of an intestate Succession to be "independent administrators." So what does that mean?

An independent executor and independent administrator can take certain actions without having to get pre-approval by a judge. The independent administration does not by any means eliminate the Succession, but the independent administrator or independent executor can pay bills, sell Succession assets, and take other certain specific actions without having to get a judge to approve the action in advance. The inventory or sworn detailed descriptive list is still required. Accountings are required (unless waived), and a judge is still required to order the transfer of assets.

How does one become an independent executor? One of two ways. Either the Will authorizes it expressly. Or, if the Will does not authorize it, the heirs all sign off on an Agreement to allow the executor to be independent.

How does an Administrator become an Independent Administrator. Well, all of the heirs who will inherit under state law must sign an Agreement to allow the court-appointed Administrator to be an Independent Administrator.

Note that if you are involved in a Succession in Louisiana and the executor or administrator is not independent, it is highly likely that one or more parties are being uncooperative, and the Succession will last a long time and be a significant burden on all parties involved.

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.

Estate Planning When You No Longer Communicate With Child

I was working with a surviving wife who lost her husband a couple of years ago. The husband never took any time to put any kind of estate legal program in place. The husband had no communication with a child that he had from a previous marriage.

After her husband died, the wife told me she wanted to sell her home and relocate. I told her she would have to get her former step-son's written permission to be the independent administrator of her husband's Succession. She said, "That ain't gonna happen. He is not going to agree to anything unless i give him money."

We talked about how, as the Administrator of her husband's Succession, she would have to go through a lengthy process to, first, be appointed as the Administrator, and then even more lengthy, do the newspaper advertising and other judicially approved  things that will be necessary to sell the house. She realized it would be months, if not years, before she could sell the house and relocate.

All this could have been made much simpler if, prior to his death, the husband would have engaged in some meaningful estate planning to make settling his estate easier for his wife and other children. Now she is faced with this former step-son controlling many of her future moves.

Take action. Your loved ones will thank you for it.

Paul Rabalais
www.RabalaisEstatePlanning.com
Law offices: All over south Louisiana
Phone: 866-491-3884

Louisiana Succession Law Allows Detailed Descriptive List To Be Sealed

There is a new Louisiana Succession law in place for 2017 that allows families to seal the Detailed Descriptive List of Assets and Liabilities, which has always been open for anyone in the public to see.

Until recently, as part of every Louisiana probate, the family was required to hire attorneys to, among other things, prepare a detailed listing of all assets and debts. This is referred to as the "Detailed Descriptive List."

Since all Probate documents are public record, this list of assets was available for anyone to see, including excluded family members, identity thieves, and others.

Now, a participant in the court proceeding can request that the Detailed Desciptive List be sealed in the court record. Even when sealed, a copy must be provided to the surviving spouse and certain heirs. 

While this step can keep family financial information somewhat private, it does not eliminate the cost and the delays already involved in the Louisiana Succession/Probate process.  Many families use trusts to keep family information private, while avoidng the costs and delays of the Louisiana Succession.

Paul Rabalais
866-491-3884

Two Successions For Alexandria, Louisiana Family: Child Dies After Parents Pass Away

I was contacted recently by the son of a set of parents who died while living in Alexandria, Louisiana. The son told me that his mother died 12 years ago, and his father died four months ago. The parents owned three homes and they also had a bank account. Unfortunately, after the father recently died, another son passed away (without a last will and testament) just a few weeks after the father died. The surviving son was worried about completing the necessary Louisiana Successions, particularly how the deceased son's three children might be affected.

We determined that neither parent had ever signed a last will and testament. So, we created the following plan to get both Estates/Probates/Successions handled without a bureaucratic nightmare. Here is the plan we developed:

  1. Son Appointed Independent Administrator. First, we will prepare the necessary Agreements and court pleadings so that the surviving son can be appointed by the appropriate judge as the Independent Administrator of both the Succession of Mom and the Succession of Dad. The court will issue documents called, "Letters of Independent Administration."
  2. Establish Estate Accounts. Once appointed by the court as the Independent Administrator, the surviving son can establish Estate Accounts in the name of each Succession, at the bank of son's choosing. He will then have the authority to move the money from his parents' account into the estate accounts.
  3. Sell the Homes. As Independent Administrator, Son will be able to sell the three homes that were owned by his parents. The proceeds of the sale of these homes will be placed in the estate accounts.
  4. Pay Estate Expenses. Son will use these estate funds to pay necessary estate expenses.
  5. Judgment of Possession. Once the final accountings, detailed descriptive lists of assets and debts, and other court pleadings are prepared and filed with the court, and once the judge's office is satisfied that all court documents are in order, the judge will sign a "Judgment of Possession" which orders third parties to transfer estate assets to the heirs. In this case, the surviving son will inherit one-half of the remaining estate assets, and the deceased son's three children will inherit the other one-half of the assets.

The son wanted to work with an attorney that knew exactly what he was doing, because the son knew that one wrong move could delay the Succession for months or years, causing additional costs, and perhaps even ruining family relationships. He said he wanted to make sure that everything was done "by the book" so that no one could complain about his actions as the court-appointed Independent Administrator.

The son was also pleased that we would be able to complete these Successions without court appearances and without unnecessary travel by our attorneys or by the heirs.

If you have had a family member pass away, and you have other family members who all have good relationships and you want to make sure they stay that way by completing the Louisiana Succession in the most efficient manner possible, you may want to give our office a call at 866-491-3884 and start a conversation about a plan to complete these matters the right way.

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.