Probate

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

Transfer on Death (TOD) and Joint Tenants with Rights of Survivorship (JTWROS) Designations Not Recognized in Louisiana

Many Louisiana residents get confused because they are under the assumption that they can name beneficiaries on their non-retirement accounts at their investment company - but they can't.

Example. Mom and Dad have three accounts at the investment company. Dad owns a traditional IRA. Mom owns a traditional IRA. And they have a joint investment account. They come into the law office to discuss how to leave assets to each other and their family outside of probate and they are convinced that they have named beneficiaries on all of their investment accounts. They later discover that they were only permitted to designate beneficiaries on their IRAs, but not their joint investment account. While other states permit probate avoidance designations on investment accounts, like Transfer on Death (TOD) and Joint Tenants With Rights of Survivorship (JTWROS), these designations are not recognized for Louisiana residents and investment companies do not permit their Louisiana customers to make these designations.

The following are a few examples of large investment companies that realize that the State of Louisiana does not recognize these designations, and thus, state so in their paperwork:

(1) Edward Jones Transfer on Death Agreement. "This Agreement shall not be valid and shall be of no effect in the State of Louisiana." https://www.edwardjones.com/images/transfer-on-death-agreement.pdf

(2) Merrill Lynch Joint Account Agreement. "JTWROS: Joint Tenancy with Right of Survivorship (not available for Louisiana residents)." https://olui2.fs.ml.com/Publish/Content/application/pdf/GWMOL/Joint_Account_Tenancy_Agreement_-_1277.pdf

(3) Merrill Lynch TOD Agreement. Transfer On Death Accounts are available to Account Owners (defined below) who reside in all states within the United States (other than Louisiana)." https://olui2.fs.ml.com/publish/content/application/pdf/GWMOL/TransferOnDeathAgreement.pdf

(4) T Rowe Price TOD Agreement. "TOD is not recognized by the state of Louisiana, so we do not offer TOD for Louisiana residents." https://individual.troweprice.com/Retail/Shared/PDFs/todreg.pdf?src=AccountFinder

(5) Charles Schwab Designated Beneficiary Plan Agreement. "The Plan is not available in Louisiana." https://www.schwab.com/public/file/P-831898/APP10780-16-ADA_-_5_19_2017.pdf

A related issue affects Louisiana bank account holders who make a POD (Payable on Death) Designation. Louisiana banking laws simply release banks from liability to heirs or the estate for paying a beneficiary in accordance with the POD Designation. But if the account owner has different heirs pursuant to a Will or Trust, the POD beneficiary may be accountable to those funds they received.

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

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

How To Get an Executor of a Succession Confirmed

The purpose of this post is to walk you through the detailed steps of getting an executor of a Louisiana Succession confirmed. Once confirmed by the court, the executor can then access accounts of the decedent, sell Succession assets, and have other powers that enable the executor to start the process of settling an estate.

Just being named as an executor in a Will does not give the named executor the authority to act. They must first go through the process of getting confirmed by a court. The following are the steps to getting an executor confirmed:

(1) Must have the original last will and testament - the one that was actually signed. The will names the executor.

(2) A petition to probate the Will and ask the judge to confirm the executor.

(3) The executor will sign a Verification of the above-mentioned Petition.

(4) Two people who knew the deceased will each sign an Affidavit of Death, Domicile, and Heirship. This proves to a judge that the deceased died and that he had a Will and whether the deceased had forced heirs.

(5) The executor signs an Oath that they will faithfully perform their duties as executor.

(6) We will prepare and file and submit the court order that we want the judge to sign confirming that the executor has been confirmed.

(7) We will prepare Letters of Independent Executorship. The clerk of court will make several certified copies. The executor needs certified copies of these Letters to move frozen financial accounts into an estate account.

(8) We have the named executor sign an Application for Tax ID Number. This number is necessary so that the executor can open an estate account.

So we file all the court pleadings and we wait - often a few weeks - for the court pleadings to be processed. We get it back and get certified copies of the Letters to the newly confirmed executor. And we are off and running.

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 Succession Detailed Descriptive List

In every Succession in Louisiana when someone dies with assets in their name, the lawyers must prepare a number of court pleadings. One of the documents is commonly referred to as the "Detailed Descriptive List" or the "Sworn Descriptive List of Assets and Liabilities." I'll refer to it as the DDL.

The DDL is a snapshot of all of the assets and debts that a person owned when he or she died. If the deceased owned separate property, those separate assets would be listed. If they owned community property, then all of the community assets would be listed on the DDL. You would see the deceased's one-half value of the community property listed.

So, what assets get listed in the DDL? Well, it's all of the Louisiana real estate, the bank accounts, the investments, the business interests, and the boats, trailers and vehicles. No formal appraisal of real estate is required but a value must be placed on each asset listed on the Detailed Descriptive List. Note that if the estate is larger than $11.2 million, and a federal estate tax return is required, then the real estate will need to be appraised for purposes of federal estate tax return reporting. 

It's also important to note here that the capital gains tax basis of any appreciated assets gets stepped up to the fair market value on the date of death. Some people, years after the death of a loved one, go back and refer to the values listed on the detailed descriptive list to determine the basis of assets.

In addition, all of the debts of the deceased, and administrative expenses, get itemized on the DDL.

It's important to get the DDL right because all of the data from the DDL get transferred to the Judgment of Possession, which is the important court order that a judge signs ordering the transfer of assets to the heirs. One difference between the DDL and the JOP is that the JOP does not typically list the values of the assets to be transferred - it just lists the assets.

In 2017, the Louisiana Legislature provided that the Detailed Descriptive List, which in the past was public record, can now be sealed in the Succession record. This sealing of the DDL may prevent predators from searching probate records and preying on surviving spouses who have some wealth.

To get more information about completing a Succession in Louisiana, you can subscribe to our youtube channel, or view our website at www.RabalaisEstatePlanning.com.

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

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

How To Find Out What Accounts Deceased Person Owned

Occasionally, after someone dies, the family starts to question what their deceased relative really owned. Sometimes we hear statements from children or other relatives like:

"I thought Dad had more CDs at the bank."

"I thought Dad had another savings account."

"I thought Dad owned stock in some other companies."

"I thought Dad had an annuity and a life insurance policy."

Well, there is no central registry that you can go to and determine everything that someone owned when they died. But there are both informal and formal ways that you can dig and determine what someone owned on the date of their death.

There are a couple of obvious formal ways that you can try and discover additional assets. First, go back and look at the last few years of their tax returns. They would likely have received tax reporting statements from financial institutions that show that accounts were owned. Second, check their mail. If they owned financial accounts, it's likely they may received account statements in the mail.

And then there is the formal way to discover someone's assets after they died. Let's use an example of Dad, who died with a last will and testament. Dad names Son as executor. People are questioning the fact that Dad owned additional accounts. Once Son works with the lawyers and the court system to get confirmed as the executor, the courthouse will issue certified copies of Letters of Independent Executorship. Son can then go to every financial institution where he thinks Dad may have had an account, and the "Letters of Independent Executorship" require the third parties to disclose Dad's account information to Son, who is the independent executor.

So, there is no central registry one can go to and figure out what someone owned when they died, but there are both informal and formal ways to locate whether a deceased person owned additional accounts or other assets. Your estate planning and estate settlement attorney can help you get the proper court authority and make the right kinds of inquiries to expedite this process. And ideally, none of this is necessary if the deceased person would have, during his or her lifetime, maintained a current inventory of assets and communicated that inventory to the appropriate family members or other loved ones.

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

Four Reasons To Administer The Louisiana Succession

When a resident of Louisiana dies with assets in their name, there is likely a Succession necessary. Financial accounts are likely frozen, real estate cannot be sold or transferred, and other estate settlement issues need to be addressed.

The simplest of Successions are handled without an administration. Let's say Husband died and the only asset in his name is the home he owns with Wife. Wife has no interest in an immediate sale of the home. This Succession, perhaps, can be completed without an administration. The attorney prepares the pleadings petitioning the judge to order that the home be transferred to Wife.

In many cases, however, an Administration is necessary because things need to be handled prior to the conclusion of the Succession. When an administration occurs, a judge either confirms the executor that was named in the will, or the judge appoints an Administrator of a Succession when no Will existed. The following are four reasons why an administration may be necessary as part of completing a Louisiana Succession:

(1) Need Access To Funds. When someone dies, often their accounts are frozen. When an executor is confirmed, or an administrator is appointed, on the front end of the Succession, that person can establish an estate account and move funds from frozen accounts into the estate account. This is often a necessary step if bills need to be paid, or the Succession incurs expenses, or mortgages or car notes must be paid, while the Succession is taking place.

(2) Best For One Person To Handle Financial Issues. Without an administration, it can be cumbersome for the family to wait for months or longer to share in the inheritance, only to be asked to give some of their inheritance back to cover Succession debts or expenses. It is often easier for an executor or administrator to be confirmed or appointed, and then that person can take care of all Succession related debts, expenses, or other matters, and then disburse remaining funds or assets to the several heirs at the conclusion of the Succession.

(3) Funds Payable To Estate. Sometimes a deceased person is entitled to funds. Perhaps the deceased is entitled to a tax refund from the IRS or the state. Or perhaps the deceased is entitled to a refund for funds advanced to a nursing home or assisted living facility. The funds will be remitted to the deceased person's estate. When a check is payable to estate, no individual can deposit that check. It must be deposited into an Estate account. The only way to create an estate account is to administer a Succession, have an executor confirmed or administrator appointed, and then have that person open an estate account.

(4) Succession Assets Need To Be Sold. It is not uncommon for a Succession to need to sell a vehicle of the deceased, a piece of real estate, an investment, or some other asset in the name of the deceased. Sure, you could wait months or years until the Succession is complete, and then transfer the vehicle to the five heirs, and then have the five heirs each individually do all of the paperwork to sell the vehicle. But it may be easier, on the front end, to have an executor confirmed or an administrator appointed, and then have that one person transact the Succession asset by himself or herself, and simply deposit the sale proceeds in the estate account for later distribution to the heirs.

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.

Starting a Louisiana Succession: Info To Gather

There is certain information that needs to be collected prior to starting a Louisiana Succession judicial proceeding. Getting off on the right start with the right information can enable the attorney and the family to design, agree on, and implement a plan to be as efficient as possible.

It typically starts with determining whether a Last Will and Testament exists. Many surviving family members have come to my office to discuss completing a Succession - but they neglect to bring the Will.

If a Will exists, we want to look closely at who the executor is. Is the executor an independent executor? Who are the heirs (also known in Louisiana as "legatees")? Are all of the people named n the Will still alive? Answers to all of the questions will help determine who the participants are in the Succession. You need to include all of the participants early on because their cooperation is necessary to conclude various Succession matters.

In addition, you'll want to gather all of the asset information. Make sure you get everything - all of the legal descriptions of real estate that the deceased had an ownership interest in, all of the bank accounts and investment accounts, any small business interests like limited liability companies, corporations or partnerships, any, vehicle titles, and anything else titled in the name of the deceased, or that the deceased had a community or separate property ownership interest in. Failing to gather all of the necessary asset and debt information on the front end may lead to frustration on the back end when you have to either start over or continue going back to court to petition a judge to amend the Succession court orders - this all takes additional time and money.

Once you have a good understanding of the provisions of the Will, the participants in the Succession, and all of the assets are involved, you and your attorney(s) should be able to devise a plan to complete all matters related to the Succession - from start to finish.

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.

The Louisiana Succession: The Basics

What is a Louisiana Succession and when is it required?

When a resident of Louisiana dies, it's likely that they owned some things. Perhaps they owned a home, other real estate, bank accounts, maybe some stock in a company, and perhaps a vehicle. Well, it's not uncommon for some people to claim that they are entitled to own and use these things. 

The Louisiana Succession is the court-supervised judicial proceeding that must take place when someone dies with assets in their name. It takes place whether or not the person left a last will and testament. Now, some assets can be transferred without having to go through a Succession, like a life insurance policy or an individual retirement account which had designated beneficiaries. But most assets, like the ones described above, must be listed in a Succession proceeding and a judge will ultimately order the division or distribution of assets.

After someone dies, and prior to the Succession, no one can access the funds or stock of the deceased, and the real estate owned by the deceased cannot be sold or transferred into anyone else's name. Some people ask, "Can't I just take Dad's Will to the bank and ask them for his money?" That won't work. The bank will not release Dad's accounts without the appropriate and certified Succession court orders that have been signed by a judge as part of the Succession process.

So if you have had a loved one pass away, and you feel you are entitled to own some or all of the assets of the deceased, then the most efficient way for you to get things done is for all of the parties to work with a Louisiana Succession attorney to create and implement a plan to gather all of the necessary asset and family information, and then follow the court rules to complete the Succession matters cooperatively.

Nine Elements of a Louisiana "Avoid Probate" Estate Legal Program

Many seniors in Louisiana express a desire that their family and loved ones avoid the court-supervised probate process when they die. Because every family is unique and each person or couple owns different types of assets, it's important that they have a foundation for their Program. The following is a description of nine different elements of the Louisiana "Avoid Probate" Estate Legal Program.

(1) Revocable Living Trust. Their Revocable Living Trust ("RLT") is the foundation of their program. This is the customized legal instrument where you state who is in charge of your trust when become incapable or when you die, who will inherit or receive distributions from your trust after you die, and it will also state the rights and obligations of all of the parties that are involved. Your RLT really replaces the traditional "Last Will and Testament." The disposition of your trust assets are controlled by your trust instrument, not your Last Will and Testament.

(2) Pour-Over Last Will and Testament. If you happen to own any assets in your name when you die, and the title of which becomes frozen when you die because they are in your name, your Pour-Over Will is necessary. The executor of the WIll, after your death, will hire an attorney and go through the court-supervised Succession procedure to have those assets in your name transferred to your trust. Note that many people who set up an "Avoid Probate" Legal Program never need to utilize the Last Will because all assets will be titled in a way making the Succession unnecessary. "Funding" your trust (or re-titling your assets) is a critical step in the process so that nothing is left in your name when you die that would require a judicial proceeding.

(3) Durable Power of Attorney. This can also be referred to as Financial Power of Attorney, General Power of Attorney, or POA. An example of when this may be needed is when you are incapacitated and there is an IRA in your name and you are unable to transact the IRA due to your incapacity. Your POA should enable your "Agent" to act on your behalf at the financial institution where the IRA is held.

(4) Health Care Power of Attorney. Also called a Medicaid Power of Attorney or Health Care Proxy. This will enable your trusted family member or friend ("Agent") to talk to doctors and access your medical records in the event you are unable to do this yourself.

(5) Living Will Declarations. This is the legal instrument where you make your wishes known regardling life support machines. People who execute Living Wills typically want to relieve their family from the burden of making an end of life decision by putting their wishes on paper, in advance.

(6) Asset Transfers. All of your funding and re-titling documents should be organized in the Asset Transfers portion of your Estate Legal Program. This is where transfers of real estate, investments, and business interests are documented.

(7) Burial and Funeral Wishes. Part of completing your Estate Legal Program may involve informal documentation of your wishes regarding certain aspects of your passing, such as your burial and funeral wishes. 

(8) Distribution of Personal Effects. Some people provide for the distribution of their non-titled personal effects (jewelry, furniture, guns, etc.) in their formal legal documents. Others take a simpler approach and make an informal list of how they want their personal effects disbursed. Check with your attorney regarding the best way to provide for the distribution of your personal effects.

(9) Trustee Education. Since the establishing of an estate legal program may be new to you, your attorney should provide both you and your Successor Trustee(s) with education and instructions as to how to best serve as a Trustee of Co-Trustee. 

While every client is different, with different needs, this should give you a pretty good example of what the typical estate planning program consists of. Now go take care of business!

Paul Rabalais
www.RabalaisEstatePlanning
Law Offices: All over South Louisiana
Phone: 866-491-3884

Transferring Real Estate To Your Revocable Living Trust

Some people don't like the thought that all of their real estate assets will be frozen when they die, in a way that their survivors will not be able to immediately sell the home or other real estate assets without first having to go through a court-supervised Succession procedure.

So some transfer their real estate to their living trust, and name a Successor Trustee who can either sell the real estate or transfer the real estate out of the trust to the appropriate trust beneficiaries.

Here are a few categories of real estate that Louisiana residents must deal with as they pass it along to their survivors:

Home. Many people own a home when they die. You can tranfer your home to your trust during your lifetime. You should work with your estate planning attorney to structure the title of your home so that you keep your property tax homestead exemption. Donating the home outright to your children during your lifetime will cause you to lose your homestead exemption, and your children will likely pay significantly more capital gains tax when they sell your home after you die. All this can be avoided with proper planning. Your estate planning attorney who is well-versed can help you.

Out of State Property. Louisiana residents don't like the idea of their family having to go through multiple probates, in different states. But this will be necessary if you own property in your name in more than one state when you die. You can avoid all of these probates by transferring both your Louisiana property and your out of state property to your Living Trust.

Undivided Interest in Property. Many people own an undivided interest in property. Four siblings, for example, may have inherited 10 acres total. Each sibling does not own their own 2.5 acre tract (unless the children divided the property formally). Each child owns an undivided 25% interest in the entire 10 acre tract. You can transfer your undivided interest to your trust without affecting the interests of the other co-owners.

If property you have is in an LLC (limited liability company), then you do not need to transfer this underlying property to your trust. Transferring your LLC membership interest takes care of this.

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

Common Revocable Living Trust Provisions

There are a number of common provisions that are in just about every trust when someone establishes an "avoid probate" trust in Louisiana. The following are a few:

(1) The trust is revocable. This could probably go without saying. Heck, it's called a revocable living trust. Most revocable living trusts can be changed anytime by the persons who established the trust.

(2) Inter vivos trust. Also it is obvious that the trust is a "living" trust, or a trust that you set up while you are living. The Louisiana Trust Code term for a living trust is an "inter vivos" trust.

(3)  Settlors. The "avoid probate" revocable living trust typically provides that the Settlors are the people who set up the trust. In your typical traditional family trust (parents leaving assets to children), the parents are the Settlors of the trust.

(4)  Trustees. Every trust, including the probate-avoidance revocable living trust, names trustees, whose job it is to manage the trust assets pursuant to the trustee duties and trustee powers that are listed in the trust instrument. Often, in your traditional trusts, parents are the initial trustees, and perhaps an adult child or children are the Successor Trustees.

(5) Income Beneficiaries. Parents are often the beneficiaries of their own revocable living trust.

(6) Principal Beneficiaries. Whoever the Settlors want to receive the assets after the death of the Settlors are named the principal beneficiaries of the revocable living trust. Often children are principal beneficiaries, but other individuals or charities could be principal beneficiaries of your revocable living trust.

(7) Trust Term. Each revocable living trust provides a term for the trust. Many trusts simply terminate at the death of both Settlors (parents). Upon termination, assets are transferred by the trustee from the trust to the principal beneficiaries - outside of the Louisiana probate/Succession.

As we work with a family to avoid probate, we make sure we customize their trust to make sure that their wishes are followed to the letter.

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.

What Are Probate Costs In Louisiana?

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Another tough question to answer accurately is "What does a Succession cost in Louisiana?"

Succession or probate costs can vary significantly from matter to matter. One of the reasons probate costs in Louisiana can vary so much is that, as far as the attorney fees go, Louisiana is a "reasonable fee" state. In many other states, probate attorney fees are based on a percentage of the total assets in the estate.

Costs typically included in every Louisiana Succession matter include court filing fees, attorney fees, and real estate recording fees. Costs that are not always incurred but can add to the total cost of the Louisiana probate matter include accounting fees for executor accounting and tax accounting, bonding costs paid to an insurance company, and appraisal costs to value real estate or other Succession assets.

There are at least three different ways that attorneys and law firm charge to complete a probate in Louisiana. First, there is the traditional "bill for the attorney's time." Consumers complain about the unknown and inefficient aspects of hourly billing. You get charged for every discussion, phone call, email, car ride, error, and anything else that has to do with your matter. There are countless stories of consumers getting bills from their attorneys and the consumer cannot believe that the attorney spent as much time on their matter as indicated. In addition, in billable hour matters, the client is often reluctant to call or email the attorney to get questions answered for fear that the client will be "on the clock" and it will cost hundreds or thousands of dollars simply to get a question answered, particularly if the question requires some attorney research.

Other attorneys charge for their legal services in a Louisiana Succession based on a percentage of the value of the assets in the estate. Like I said earlier, this method is required in some states outside of Louisiana. So, if an estate is worth $1.5 million, and the attorney says he charges 2.5% of the estate for his or her legal services, then the attorney fees alone will be $37,500.

Note that married couples will go through the Louisiana probate process twice - once at each death. So if the family can avoid these probate costs which must be incurred at each death, the family can likely incur some significant costs.

Other attorneys who provide legal services to the survivors of a deceased in a Succession will charge based on a "fixed amount." Consumers like this because there is certainty, regardless of how many phone calls, discussions, or emails take place.

While I can't give a definite cost to expect, I can tell you there will not be a Succession matter handled that costs less than four figures (thousands). Many Successions in Louisiana cost the estate five figures (tens of thousands). And some Louisiana probate matters will cost the estate six figures (hundreds of thousands). 

Yes, there are ways that you can pre-plan to avoid probate. It simply requires that you get educated and take the right action. 

What Are the Steps Involved in a Louisiana Probate?

It's always a tough question for me to answer when someone asks, "What are the steps involved in a Louisiana probate?"

Every probate in Louisiana is different, based on the procedure and the complexity and the assets and debts that are involved.  The way a probate evolves can vary based on the parties that are involved and the relationships of those parties. The probate can vary based on whether a last will and testament exists, and, if so, the relevant terms of the last will and testament. So, again, there is going to be a probate "no matter what" if assets are in the name of the person who died, but the Will or lack of a Will often dictates the direction that the probate must take.

The following is a "typical" scenario that we see in many Louisiana Successions, but realize that your particular situation can be very different. 

(1) Hire Attorney and Develop a Plan. This is where all of the parties retain an attorney to guide the family through the court proceeding. It's a good idea at this point to have an initial plan that gets communicated to everyone regarding all of the steps that are necessary to complete the Louisiana probate.

(2) Get the Executor Confirmed. Court petitions get prepared and executed whereby the executor petitions a court to "probate the Will" and confirm the executor. The term "probate" is often misused. Most people prefer to use the term "probate" as the entire court-supervised proceeding from start to finish. But technically, when a judge "probates" a Will, the judge is confirming that the Will is a valid will under Louisiana law. Nonetheless, a judge typically signs a court order after this confirming the executor's status, and then the court order is processed so that the clerk of court of the proper parish issues "Letters of Independent Executorship," which lets banks, title examiners, and other third parties know that the executor may now act on behalf of the estate.


(3) Estate Account(s). Now that the executor has the authority to act on behalf of the estate - because he or she has been confirmed by the court as the executor (or, in many cases referred to as the "independent executor"), the executor may open an estate account or multiple estate accounts so that funds and other investments and financial accounts can be collected into the estate account.

(4) Accountings. The executor, the family, the participants, and the attorneys work together to prepare a Detailed List of Assets and Debts that the deceased has when he or she died. In addition, the executor may be required to have the attorneys prepare an accounting showing the court and heirs how the executor handled estate funds after the death of the deceased.

(5) Judgment of Possession. Once the estate has been administered and all of the above has been accomplished, the attorney will prepare a final petition to the court ( all of the heirs must sign off on this), requesting that the proper judge sign a court order (referred to as a "Judgment of Possession"), whereby the judge orders the executor and third parties to disburse assets to the heirs in the proper proportions, after all taxes, costs, and other administrative expenses have been paid.

(6) Distribution. Once the judge signs this Judgment, there is a process whereby each asset must be transferred to disbursed to the heirs. Copies of these Judgements are often filed in the real estate records of the parish where the deceased owned real estate - this is what conveys ownership of the real estate to the heirs. 

Again, the emphasis here that needs to be made is that each Louisiana probate is different, and even the best of plans that are made at the beginning often change due to the fact that new information gets discovered, or relationships turn sour, during the course of this court-supervised probate process. 

Also know that by planning ahead the right way with an estate legal program, you can arrange your legal affairs so that your family and heirs can completely avoid having to go through this.