Paul Rabalais' Louisiana Succession Law Blog

Children Donating Back to Surviving Spouse

Several times over the years I've worked with a family and here's what happened. Let's say mom died and mom didn't have a will and dad inherited the usufruct of mom's half of the community property. The children were named naked owners. So the children will come in years later and say "When mom died we just signed all of the paperwork so that dad could have everything." So even though the children were entitled to inherit this naked ownership, they did the paperwork in a way that they just gave it all back to dad and now dad owns everything. Well then dad, maybe he remarried, and he writes a will providing for his next spouse and the children are saying "Well wait a second. I inherited my mother's half of everything. At least I get that." We have to tell them no, when mom died and you gave everything back to dad he can now do whatever he wants to with it. You gave up all of your rights and your mother's inheritance. So children need to be aware that when the first spouse dies you want to make things easy for the surviving spouse. You want to give it all back to your dad or mom. But be aware that life changes, circumstances change and that surviving spouse really has complete control over where it goes when the surviving spouse dies. So know your rights, know what may happen in the future before you start signing off on documents after a family member dies. All those things that you sign have consequences in the future. If you have questions about settling a succession or an estate settlement in Louisiana feel free to give our office a call. We do successions all over the state, all 64 parishes. Our number is 866-491-3884. Have a good day!

The Surviving Spouse: Completing a Succession AND Avoiding a Succession

I'd like to tell you about a scenario that we've run into quite a bit. It's when you have a married couple. One spouse dies and the surviving spouse goes through a succession or probate. It's that court proceeding that the surviving spouse has to go through to unfreeze all of the assets of the spouse who died. A lot of times that surviving spouse gets frustrated having to go through that court process and the surviving spouse then wants to set things up to eliminate their children having to go through that process. So, what oftentimes happens is the surviving spouse comes in and realizes how difficult the succession is and then wants to set up things perhaps with a revocable living trust so that the succession or probate is avoided when the surviving spouse dies. So really it's easiest if you do all of that at once. The surviving spouse's succession and then the surviving spouse's trust to eliminate the succession when the surviving spouse dies. It's really two steps that can be combined into one. So if you are a surviving spouse about to go through a probate and you want to make sure your children avoid that probate when you die, consider doing that all at once. If you have any questions about that you can give us a call at 866-491-3884. So be aware of that going into it and have a great day!

What are the First Things a Louisiana Executor Should Do?

I'm working with a family in Shreveport. Mom passed away and the son was named as the executor. Son wants to know "what do I do?" Most people who are named the executor in a will have never been an executor before and they have no idea what to do. Here's your initial steps if you've been named an executor of a will. Really you have no power until you are what's called "confirmed" as the executor. Here's a sample petition we have to file at the courthouse. It's the first step in the succession. Petition for probate of statutory testament and for confirmation of testimentary executor. (I know that's a mouthful) but it's a set of paperwork that we have to prepare. It's really step one in a succession. We get the necessary people to sign off on all these pleadings that we have to customize. We file that at the courthouse and then a judge signs a court order ordering that the will is valid and that the executor is now confirmed as the executor. So if you're the executor you really have no power even though your named as the executor of the will you have no power until the court confirms you as the executor. It may take a month or two to get confirmed as the executor. There's a lot of paperwork to be prepared, there's delays with the courthouse processing, but once you're confirmed as the executor here's what's typically done. 1) You can divert the mail. You'll have the court orders you can take to the post office. 2) You can open up an estate account at a bank and move the deceased's money from the deceased's accounts into the estate account. 3) You can sell a car that's titled in the name of the deceased. Those are typical first actions that take place when somebody's confirmed as the executor. If you've been named as the executor in a succession and not sure what to do, check out our blog, there's a lot of information on there. You can even give us a call and we'll have that discussion with you about what your next steps are. 866-491-3884. I'm Paul Rabalais and have a great day!

Do You Always Need an Executor in a Louisiana Succession?

I've been working with a family in Lake Charles. The husband died. He had a will and the family was hung up because the husband had named someone as the executor. That person was not available to serve. The husband named someone as the alternate executor and that person was really not appropriate to be the executor. So the family really was going on and on about "who's going to be the executor of dad's estate?" because the two people that dad named, really it was not appropriate for them to be the executor. They were really stressed out about it because it would have just caused havoc for those named individuals to be involved. What they didn't realize was that many Louisiana Successions, if they're relatively simple and there's not a lot of debt, and there's not a lot of complicated transactions that need to take place while the succession is going on, we handle many successions where we don't even get an executor confirmed. We don't even need an executor. We can do all of the court filings so that simply the assets are transferred from the name of the person who died into the names of the heirs, skipping what's called an administration. So we do the succession without an administration. We don't get an executor confirmed. So when the family found out that we could do that they were very relieved because we didn't have to get those two inappropriate named executors involved. We could do the succession without an administration, without getting an executor confirmed. So be aware that not in every succession do we have to get an executor confirmed. In some cases we can just skip that step. If you have any questions about successions check out our blog or give us a call at 866-491-3884. We are handling successions in all 64 parishes around Louisiana. Have a great day!

What if the Deceased Lived Outside of Louisiana and Owned Real Estate IN Louisiana?

I want to talk about one of those many crazy words we have in dealing with estates. It's called an ancillary probate. Here's the deal on that. I got a call about a week ago from a woman who lived in Mississippi. Her husband had passed away and he had owned some land in Louisiana. He had a camp in Grand Isle. They were selling that property but she realized that she had to do what was called an ancillary probate. That's what's necessary when somebody lives in a state outside of Louisiana but they own real estate in Louisiana. The family will do that probate in the state where they lived but that out of state probate will not transfer the Louisiana real estate. So the family contacted me and we're in the process of doing all of that paperwork to transfer the Louisiana property to the surviving family members so they can sell it. Be aware that if you live outside of Louisiana but own some real estate in Louisiana it's the full blown succession, the full blown probate, but it's called an ancillary probate. It's required any time you live outside of Louisiana or a deceased person lived outside of Louisiana but they owned some real estate in Louisiana. You have to do an ancillary probate to clear up that title of that property. I'm Paul Rabalais and have a good day.

Filing a Federal Estate Tax Return After the First Spouse Dies to Make Portability Election?

I want to talk to you about how it may be necessary and very tax advantageous to file a federal estate tax return after the first spouse dies where in the past that was never necessary. We have something new called portability. I'll give you an example, let's say mom dies and she has an estate of $400,000 and her estate tax exemption is $1 million. Now we can file a federal estate tax return within nine months after mom's death. No estate tax is due but mom didn't use $600,000 of her estate tax exemption. Simply by filing her return, dad now has his estate tax exemption, and he also gets to use her $600,000 of unused estate tax exemption. It's a big deal and it's something new, but in order to take advantage of it, the family has to act after the death of the first spouse. If you don't file a return within nine months and you don't do all that timely, you lose this opportunity for the surviving spouse to save a considerable amount of estate tax. So be aware that after the first spouse dies, find out whether filing an estate tax return is going to save significant family assets after the death of the surviving spouse. I'm Paul Rabalais, be aware of that portability law, which is new. If you have any questions about it call us toll free at 866-491-3889. Have a great day!