Banks, Credit Unions, and Brokerage Firms: Stop Requesting Letters Testamentary

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

Where Should You Keep Your Will?

I'm often asked, "Where should we keep our last will and testament?"

This is an important issue because, after you pass away, your original last will needs to be filed at the courthouse to start the court-supervised probate process (often called "Succession" in Louisiana). You have several options when it comes to where you should store your last will.

Some people mistakenly believe that all Wills are stored at the courthouse. Your Will does not get filed at the courthouse until after you pass away and the Succession is underway. A probate/Succession cannot get started until after someone dies.

Some choose to keep their original last will at their residence. This keeps the will easily accessible, but many Louisianians lost all of their important legal documents in recent hurricanes and floods around south Louisiana. If you do keep your last will and testament in your home, perhaps you should keep it in a waterproof and fireproof safe, preferably one large enough or built into the structure to prevent theft.

Others decide to keep their will in their bank safe deposit box. If you do this, you must make a decision regarding whether you want to grant someone else the authority to access your box. If no one else is "on" your safe deposit box, then a court order will be necessary after you pass away to open your box and access the contents of your safe deposit box.

Some people, at their attorney's suggestion, allow their attorney to keep their last will and testament. I've never been a big fan of the attorney keeping the originals of all of the Wills that he or she prepared. Attorneys can move around often. In addition, an awkward situation arises when the survivors may not want to use the legal services of that particular attorney or law firm after the death of a loved one. Many attorneys keep the original wills of their clients because it gives them a competitive advantage when it comes to the lucrative probate work that is necessary of the death of the will-maker.

The Louisiana Legislature has authorized the Secretary of State to maintain a Will Registration Form. While you cannot enclose a copy or the actual will, you can document the intended place of our will or the name and address of someone who has information regarding where your will is located. We don't see this Louisiana Secretary of State Will Registration Form used very often.

While there may be no "perfect place" to keep your last will and testament, you should, at least, let your trusted love ones know of the existence and location of your last will and testament.

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

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

Steps Necessary to Either Amend or Revoke Your Revocable Living Trust

It is common for people, as part of the estate planning process, to establish a revocable living trust to provide for the disposition of trust assets outside of probate. Occasionally, people who previously established a revocable living trust want to amend or modify or revoke their trust.

Reasons why people would amend their revocable living trust include someone wanting to change the beneficiaries of their trust; someone wanting to amend how a beneficiary receives his or her portion or share; or perhaps changing the name of the Successor Trustee who is in charge of administering the trust after the death of the Settlor (the person who established the trust).

So, how do you amend or revoke your trust? Well, you must first look to the state law of the state that governs the trust instrument. The following is an overview of the Louisiana law applicable to modifying or revoking a trust.

What you should never do is pull out a pen and pencil and start marking on your trust. None of this will be valid. Most trust amendments or revocations in Louisiana are done by authentic act. An authentic act, generally, is a writing executed before a notary public and two witnesses, and signed by the person amending their trust, the witnesses, and the notary. Most trust amendments are done this way.

The Louisiana Trust Code also provides for modifying a trust by act under private signature, and also by testament. Even though Louisiana law provides for three different ways to modify a trust, most amendments are done through an authentic act.

Bottom line - don't try to amend or revoke a will or trust without getting some legal help from an estate attorney. Different rules apply to wills and trusts, and you must work with an attorney who understands all of this and helps you get it right the first time - there is too much at stake.

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

Avoid Handwriting Changes Directly on Your Existing Last Will and Testament

I've seen many people over the years want to make changes to their existing last will and testament. Without knowing any better, they pull out their existing will, grab pen or pencil, and cross through the things they want to change while writing in replacement provisions.

For example, someone may want to change their executor. They feel that the previous executor they named (let's call him "Joe") is now a bum, and they want to replace Joe with Fred.

Or, let's say a Will provides a specific bequest either to an individual or charity of $100,000. But the testator now wants to change that bequest to $5,000.

There are a couple of Louisiana laws that are in play here. First, Louisiana law provides, in pertinent part, that a revocation of a testamentary provision occurs when the testator clearly revokes the provision or legacy by a signed writing on the testament itself.

So, the Louisiana rules are somewhat relaxed to permit the revocation of a provision in a last will by a signed writing that is not dated but which clearly revokes the provision.

However, regarding a replacement provision, the formalities are more stringent. Louisiana law provides that, "Any other modification of a testament must be in one of the forms prescribed for testaments.

Example: A woman pulls out her old will naming Joe as the executor. She scratches through Joe's name, writes in Fred's name, and signs the change. The result would be that Joe is no longer the executor because she revoked the provision by a signed writing, but Fred will not be the executor, because this modification is not in one of the forms prescribed for testaments - it does not meet the formality requirements of an olographic testament because it is not dated.

Be very careful when you attempt to change your Will. Your safest bet is to work with an attorney who understands the rules as they relate to revocations and modifications of testaments.

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

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450