Paul Rabalais' Louisiana Succession Law Blog

Why All Heirs Must Cooperate in a Louisiana Succession

 

I spoke with a gentleman yesterday who has been struggling for years to get successions done for a parent and a step-parent. The problem has been not all of the parties being on board.

The way our Louisiana succession system is set up, things can get done very quickly if you can get all of the heirs together, communicating and in agreement on what has to take place. Problems surface when there is a party not willing to communicate or agree. Things shut down and successions may never get done. In our office, we only handle successions where we can get everyone involved from the start.

If you are concerned about all of the necessary parties cooperating when a family member passes away, attempt to open the lines of communication and get everyone on the same page to create a plan to get things done. If there is someone being uncooperative, you have to work on that from the start.  You really need everyone working together in order to get things done.

If you need any help with this, our office would be happy to work with all parties involved in the succession.

Paul Rabalais

What Accountings are Required by Louisiana Independent Executor?

If either the Last Will authorizes it, or if all heirs agree, an executor named in a Louisiana Will can be what is known as a "independent executor."

An independent executor can take many necessary actions without the necessity of seeking and obtaining court approval.  So what does the Louisiana law say about an independent executor being accountable to the heirs?

In successions where all of the heirs are in agreement on how the estate should be settled, the heirs will often sign documents waiving the final accounting. However, if at least one of the heirs does not waive a final accounting, then the independent executor must file a final account with the court.

So what is a final account? A final account is a succession document prepapred by either the independent executor, his attorney, or his accountant, which shows the money or other property received by and in the possession of the independent executor at the time the independent executor took office, the revenue, other receipts, disbursements, and disposition of property during the period, and the remainder in the possession of the independent executor at the end of the accounting period.

Preparing an accurage accounting can be exhaustive work. It's much easier to have all of the heirs waive this accounting. But if at least one heir requests this accounting, it has to be done and filed with the court. The independent executor cannot be discharged until all of the heirs waive the accounting or the accounting is filed with the court.

If you are an executor or an administrator of a Louisiana succession, and you want to make sure you comply with your obligations as the succession representative, and maybe even more importantly, avoid personal liability for acting inappropriately, feel free to send me an email at paul@rabalaislaw.com or give my office a call at 225-329-2450. Put in the subject line of your email, "EXECUTOR NEEDS HELP," and I'll give it my undivided attention.

Paul Rabalais

What If a Louisiana Independent Executor Misbehaves?

An indpendent executor has the right to settle the estate without having to submit to court approval for actions in settling the estate. But what recourse do the heirs have if an independent executor oversteps his bounds?

That question was posed to me today. Here's a few things that heirs can do if they suspect that an independent executor is mismanaging a succession:

• Any heir may demand an annual accounting from the independent executor. In addition, heirs can petition the court to require that an independent executor furnish accountings more frequently than annually.
• Don't waive a final accounting. The independent executor must file a final account with the court - unless the heis waive it.

• Know that before the independent executor can be discharged, he must verify and file a detailed descriptive list of assets and liabilities of the estate.

Many people mistakenly believe that an independent executor has free reign to do whatever he or she pleases in settling the estate. This couldn't be further from the truth. The independent executor must act in the best interest of the estate. If you are named an executor and you want to know what your responsibilities are, give me a call at 225-329-2450 or send me an email at paul@rabalaislaw.com. I represent executors and make sure they follow the rules and keep their noses clean.

Paul Rabalais

If Michael Jackson Was a Resident of Louisiana - the Feeding Frenzy

Michael Jackson died last week - presumably a resident of the State of California. There will be many estate issues that will take many years to resolve. If he died a resident of the State of Louisiana, here are a few of the issues that would crop up in his Succession:

1. Tutorship of Minor Children. It is being reported that Michael may not have been the biological father of his children - this really muddies the waters. The tutor (other states call this person a "guardian") has all of the parental rights  - such as the right to raise the children, determine where they go to school. manage their money, etc. In Louisiana, the surviving parent typically has the right to be confirmed as the natural tutor if one of the parents. Since the tutor will likely be able to control much of the minors' money, this likely be a battle that will go on for years - perhaps at least until the children reach the age of majority.
2. Executor of Estate. The pop singer's Last Will has not popped up yet. I'm sure it will soon. In his Will, he named an executor. It's the executor's job to gather all the assets, pay the estate debts (its been reported that he is $400 million in debt), and see to it that the remaining estate assets get properly transferred to the heirs. Since it is usually about the money, the named executor will fight to keep his job. In Louisiana, the executor is entitled to a fee of 2.5% of the assets of the succession. If his assets are $500 million, the executor's fee will be $12.5 million - good work if you can get it. The executor will have to file the will at the courthouse and make it public record before he can be confirmed as the executor.
3. Michael Jackson's heirs - No telling who he left his estate to - could have been his children, his parents, his siblings, other friends, charities, or perhaps his chimpanzee friend. We'll know soon enough when TMZ gets their hands on a copy and sends it out over the internet, or when the executor files the Will at the courthouse. If he left part of his estate to his children, he probably left it in trust for them until they are older. He would have designated a trustee of his children's trusts. If he died a resident of Louisiana, his children would be forced heirs and entitled to divide one-half of his estate - no matter what his Last Will provides. California and all other states do not have forced heirship. This trustee will no doubt demand significant compensation.
4. Estate tax. Since Michael Jackson died in 2009, there will be estate tax due on the portion of his net estate that exceeds $3.500,000. Since much of the value of his estate is tied up in real estate, future royalty payments, and business interests, there will be significant bickering between his estate and the IRS regarding the value of Michael Jackson's estate. The estate will attempt to decrease the value of his assets, and increase the value of his debt, in order to minimize the 45% federal estate tax. His federal estate tax return is due nine months after the date of his death - no doubt there will be extensions and controversy with the IRS.

There will be numerous legal, financial and tax struggles that will face the parties involved in settling Michael Jackson's estate. Many of these issues will not be "Black or White." Some will be good and others will be "Bad." I'm sure the estate litigation will be a "Thriller" to watch unfold. Many people will be told to, "Beat It." If I were advising an heir, I'd tell them, "Don't Stop 'Til You Get Enough." I'm sure there will be many fighting for custody of his daughter stating, "The Girl is Mine." No doubt there will be many people who will "Wanna Be Startin Somethin."

Good luck to all involved. I hope the children's best interests are looked after.

Paul Rabalais

Purported Louisiana Last Will Must Be Filed

Was working on a succession recently. Everyone assumed the deceased had never signed a Will. While we were in the middle of the succession, someone produced - but did not file - a copy of a purported last will and testament of the deceased. Now what happens?

Louisiana Succession procedure law provides that if you have possession of a document purporting to be the testament of a deceased person, even if you do not believe the will is valid, you must present it to the court requesting it be filed in the succession record.

Be aware, however, that your presenting the Will does not mean you vouch for its validity, nor are you precluded from asserting its invalidity.

If you have any general questions about successions, post a comment and we'll do our best to answer your questions. If you like to inquire - at no cost - about our estate administration legal services, simply give our office a call at 225-329-2450, or send me an email at paul@rabalaislaw.com. Make sure you put in your subject line: Need Succession Help.

Paul Rabalais

Louisiana Co-Executors May Not Be a Great Idea

Some people want to designate two or more individuals to serve as their co-executors. Perhaps a parent had three children and the parent doesn't want to appear to favor any of them so the parent designates all three of them as co-executors.

Louisiana Succession law provides that if more than one executor is appointed, all actions by the succession must be taken by all of the executors jointly, unless:

1. The testator (person who wrote the Will provided otherwise; or
2. The executors have filed in the succession record a written authorization to a single executor to act for them all.

I was involved in a succession not too long ago which had four executors that could not agree on anything. Paying the light bill on the decedent's house to the proverbial act of Congress because it seemed that at least one of the executors would disagree with the action. Even if three of the four co-executors agreed on an action, the action could not occur because Louisiana Succession law requires that ALL CO-EXECUTORS MUST AGREE for any succession action to occur.

Appointing multiple co-executors who don't agree on EVERYTHING just might be a good way to assure  that there will be some holdups in your succession. If you are an executor and you want to know how to properly get things done, or if you simply need good legal representation to settle an estate in Louisiana, simply post a comment, send me an email at paul@rabalaislaw.com, or give our law office a call at 225-329-2450. Make sure you let us know you are an executor and you need help.

Paul Rabalais

Successions Can Be Simple If All Heirs In Agreement

Some successions are simple to handle while others are quite complex. What makes a succession simple or complex. Well, it's any number of things but if one factor exists which makes a Louisiana succession easier to complete it is: IF ALL HEIRS ARE IN AGREEMENT ABOUT HOW SUCCESSION MATTERS ARE TO BE RESOLVED, THEN IT IS EASIER TO COMPLETE.

If a parent died and you are sharing an inheritance with a sibling or other relative, I encourage you to communicate with all of the heirs and come to an agreement on how to finalize the succession. You will need an attorney to help you develop a plan to conclude the succession, but if all parties are in agreement on all issues and all parties are represented by the same attorney (perhaps ME!), then it is likely that it will be smooth sailing for the succession.

If, on the other hand, the heirs disagree and have conflicting interests, then each conflicting party must have his or her own attorney, and it often winds up with no one trusting any of the other parties, and everyone thinking that the others are stealing from them or the estate.

I was working with one family today after the surviving parent recently passed away. The parent had six children, all who get along well, and the succession is proceeding at a rapid pace. Estate assets are being sold, estate checking and estate investment accounts are being accumulated, and we'll be finished in no time.

I was working with another family today, and, because there is a distrust among the children, nothing is being done. The family home cannot be sold, people are accusing others of using estate funds, and it's likely that this will continue to go on.

If it all possible, work toward an amicable resolution in a succession as opposed to a judicial resolution. Feel free to let me know if you'd like us to help you work through succession issues you are addressing. Untl next time...

Paul Rabalais

Grounds To Contest a Succession

Some people I talk to tell me they want to contest the way a Louisiana Succession is being handled. I always say, "Why?" Sometimes they say, "Because I don't like the way it is being handled." To that, I  say, "That might not be good enough."

I've stopped accepting new Contested Succession clients. But I've seen successions cause many disputes. Successions can be contested for any number of reasons. Here's a few:

1. A person did not have the capacity to understand what he was doing when he signed his Will (sometimes tough to prove).
2. A person was improperly infuenced by another to sign a Will (also sometimes tough to prove).
3. Someone disagrees with the executor's Detailed Descriptive List of assets.
4. There is ambiguity in the interpretation of a Will (sometimes a judge has to ultimately decided the intention of the testator).
5. There is disagreement about the community or separate status of assets.
6. Upon a surviving spouse's death, heirs of the first spouse demand a usufructuary accounting - most people don't understand what this is.
7. There is a dispute about personal effects - either their existence or their distribution.
8. An hier accuses an executor of mismanaging estate assets or improperly acting in his role as executor.
9. Someone wants the Will revoked because it did not meet the validity requirements of either a Louisiana notarial Will or a Louisiana olographic Will.

Feel free to comment if you are aware of more grounds to contest a succession. I've had a number of requests to "file suit" in a succession that I have not been able to accomodate. Here's just a few of my favorites:

1. "I want to sue the estate because the deceased told me he wanted me to have his house."
2. "I want to sue the estate because the deceased told me he wanted me to have his house - and there are witnesses who saw him say it that will testify."
3. "I want more of my dad's estate because I was the only child in town and I took care of him for the last five years."
4. "I want to sue my step mom because my dad left his estate to her."
5. "I want to sue my long lost brother - even though he is in the Will - because he did not communicate with my dad in the last ten years."
6. "I want to use this document that my mom typed on the computer even though it is not notarized."
7. "I want to sue somebody because it is not fair."

If you know more not so legitimate reasons to question a Louisiana succession (or any state's probate), feel free to comment. Until next time..

Paul Rabalais