Paul Rabalais' Louisiana Succession Law Blog

Joint Tenants With Rights of Survivorship: What it Means in Louisiana

 

The following story is a trap where unknowing families often wind up paying hundreds of thousands of unnecessary estate tax dollars. I was working with a family where Dad died a few weeks ago and the family was doing a lot of things on their own. Dad had some IRA's that went to the surviving wife. They were able to do all of that paperwork with the financial institution because she was the designated beneficiary. They also had an account that had about a million dollars in it and was titled, "Dad and Mom, Joint Tenants with Rights of Survivorship." Now, that's a form of title that Louisiana simply doesn't recognize. However, they had that account and as far as that investment company knew, if it was titled that way and Dad died, they were going to put the account in Mom's name. That's exactly what they did. Mom has all of the money and they felt like we didn't even need to address that account. Dad's last will and testament said that Dad gave Mom the lifetime usufruct of his estate. So I told them how really important it was to document that account and put it in as a succession asset and itemize everything in that account because if it was left how it was then when Mom dies in the future it was all going to be in Mom's estate. This could be a lot of unnecessary estate tax creating a large estate for Mom. However, if we document everything correctly now by documenting what Dad's estate was that Mom had the usufruct of Dad's half of the community property, then those things that Mom had the usufruct of won't be counted as part of her estate for estate tax purposes when she dies. A lot of financial institutions just let Mom put everything in her name, but it's really important for estate tax avoidance purposes to document what's in the estate of the first spouse to die so that it gets excluded from the estate of the surviving spouse.  So make sure you take care of all those things.

Final Steps in a Louisiana Succession

We are wrapping up several successions this week. Some of them have lasted several weeks; some several months; and there is one that has been going on for years. Every succession is different because every succession has different types of assets that must be transferred, different debts, and different personalities and relationships among the parties involved.

How we finalize a Louisiana Succession depends on whether the Succession was completed "with an administration" or "without an administration." Let's take a look at the differences.

Hypothetical: Dad died with a house, stock, a vehicle, and bank checking and savings accounts.

• Example 1: Dad left it all to Mom. Since Mom doesn't want to sell any of Dad's estate assets, she merely wants to have it put into her name. She already has access to the bank accounts because they were joint accounts. We would complete this succession without administration and petition the proper court to order that all of Dad's assets be re-titled into Mom's name.
• Example 2: Dad left it all to his three children. In this situation, we must have an administration. One of the kids will get appointed as the Administrator (if Dad had no Will) or the executor will be confirmed (if Dad had a Will naming an executor). The executor will open estate accounts, transfer Dad's bank accounts into the estate accounts, sell the stock, vehicle, and home, and ultimately distribute the cash and estate assets equally to the three children.

In either situation, the final step involves petitioning the court for a court order (also known in legal circles as the "Judgment of Possession") which orders parties to transfer assets to the heirs. This Order is filed in the real estate records of the parish where real estate is located, and it is also sent to investment firms, stock transfer agents, and banks when those parties need to be instructed to transfer assets into the names of the heirs pursuant to this order.

Successions can be difficult to understand because each one is so different and there are several different succession procedures (Will v. No Will; administration v. no administration; independent administration v. regular administration.

If you are in charge of completing a Louisiana Succession, give us a call and we'll talk you through all of the steps to complete it, and then we'll get it done in lickety-split.

Paul Rabalais

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Impressed With St. James Parish Clerk of Court

One of our valued clients passed away this past Friday - six days ago. His wife called our office that afternoon. She was concerned because she did not have access to any of the accounts and she knew there would be bills to pay.

Laura helped her out like she always does by talking her through it on the phone. My following Monday's schedule was jam-packed but I told Laura that the surviving wife could come in at 8:30am on Monday morning.

In anticipation of her early morning arrival on Monday, Catherine customized the initial set of succession pleadings confirming the surviving wife as the independent executor. By 9:30am, the suriviving wife had signed all the pleadings. Catherine quickly sent them off to be filed at the St. James Clerk of Court, which was the proper venue.

Today, three days after we sent them off and six days after the date of death, we received the signed court order and we received several certified copies of Letters of Independent Executorship. I called our client and told her the good news. She was ecstatic because she had been really worried that accounts would be frozen for months.

I applaud the employees and judge's office at the St. James Parish clerk of court. This is extremely prompt service. Our office's experiences with courthouse processing departments is rarely this efficient. Keep up the good work!

Attorney Appointed For Heir That Can't Be Located

Someone called the office earlier in the week inquiring about our handling a succession. They said one of their heirs cannot be located. The heir was a long lost child of the deceased. The deceased died without a Last Will so this individual was an heir.

Here's what happens when no one knows where an heir is:

• The court must appoint an attorney to represent the absent heir;
• The appointed attorney must make all efforts to identify the heir and inform him that he inherited, and the attorney must represent the heir in all court proceedings;

Then, if the heir still cannot be located, the court may order that the executor or administrator deposit in a bank or in the registry of the court the funds credited to the missing heir.

Since all of the heirs (or their attorney) must join in the petition for possession in a Louisiana succession, you cannot ignore the fact that an heir is missing. Assets cannot be transferred to any of the heirs until this procedure for a missing heir is followed.

Let us know if you are involved in a Louisiana succession where there is a missing heir. So long as the succession is not contested, we'll be happy to talk to you about how we can expedite the process.

Paul Rabalais

Working With the Courts on Successions Can Be Frustrating

We strive at our office to be prompt, accurate and efficient when we are providing our Louisiana Succession legal services. I have to admit that our client services attorney, Catherine Martinez, does a whale of a job creating and processing all of our succession pleadings and other probate paperwork.

Today I received word that the judge's office rejected two of our Louisiana Succession Petitions for Possession. Just so you'll know, a petition or other court pleading can be rejected if it is not procedurally correct or for another valid reason.

In both matters, the Petition for Possession and corresponding Judgment of Possession was rejected because, as the clerk for the duty judge put it, we did not file the required, "Affidavits of Death, Domicile and Heirship."

So they rejected our documents and sent them back to us to start over. What the law clerk failed to realize was that we had filed the required Affidavits of Death, Domicile and Heirship when we filed the Petition to Probate the Will. Anybody who knows anything about Louisiana Successions would have known to look to see if these Affidavits were previously filed.

The solution has to be to either better train the clerk of court employees who are in charge of handling and processing succession pleadings, or to create a probate court which would exclusively handle succession matters. Since there would be cost and politics involved in establishing a probate court, I don't see that happening anytime soon.

While a Louisiana Succession can often times be a streamlined processing of paperwork at the proper courthouse, any number of things can and often do occur to slow down or stop the process in its tracks. The only way to completely avoid a Louisiana Succession is to make certain there are no assets titled in your name at your death which would require a Louisiana Succession - often done by creating and funding a revocable living trust.

Paul

Valuing Estates as of Alternate Valuation Date

Been working with our associate attorney, Catherine Martinez, this morning on a federal estate tax return for someone who died in late 2009 when we had a federal estate tax for estates of decedents that died with an estate valued in excess of $3.5 million.

Since a large portion of the estate consisted of stock which depreciated in value after the date of death, we are using the alternate valuation date for purposes of valuing the estate for federal estate tax purposes. It will save a pretty good chunk of change in estate tax. The alternate valuation date is the date six months after the date of death.

A few points you should know about using the alterate valuation date for federal estate tax purposes:

• All of the assets must be valued as of the alternate valuation date. You can't pick and choose which assets get valued as of the alternate valuation date;
• You cannot use alternate valuation date unless the amount of tax will be reduced. So, a non-taxable estate cannot use the alternate valuation date;
• If the estate sells property during the six month period, then the sold property must be valued as of the date of sale;

Using the alternate valuation date for federal estate tax purposes can be complicated. Since there is no federal estate tax for estates of decedents dying in 2010, it appears the alternate valuation date will get a one year hiatus.

Paul

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Why Hire The Rabalais Law Firm To Handle a Louisiana Succession

Selecting the appropriate lawyer or law firm to handle a Louisiana Succession for a family member or other loved one can be one of the most important legal decisions you ever make. Selecting the right lawyer can provide for a quick and smooth transition in the handling of legal, tax, and financial concerns after the death of a loved one. On the other hand, working with the wrong attorney can result in unnecessary delays, conflicts, costs, and mistakes that can strain your most valued family relationships.

There are both some obvious and not-so-obvious reasons why surviving family members should select our law firm when making the all-important decision of who to guide and represent them through this often difficult process.

The following are 11 obvious reasons why you will want to work with us:

1. I have been handling Louisiana successions for more than 18 years;
2. I am a Board Certified Specialist in Estate Planning and Administration, a certification issued by the Specialization Board of the Louisiana State Bar Association.
3. I have a B.S. in Finance from Louisiana State University.
4. I earned my law degree from the LSU Law Center.
5. After graduating from law school, I earned a Masters Degree in Tax Law (LL.M.) from Boston University School of Law.
6. We perform our legal services for a fixed fee which you know in writing up front - never any surprises about legal fees.
7. We have convenient offices and convenient free parking.
8. We stay in touch with our valued clients by writing and providing educational e-newsletters, print newsletters, and events that I conduct.
9. I wrote a book, "Estate Planning in Louisiana, A Layman's Guide To Understanding Wills, Trusts, Probate, Power of Attorney, Medicaid, Living Wills & Taxes," which is available at Barnes & Noble and amazon.com.
10. I maintain a blog that I update weekly regarding Louisiana Succession issues.
11. I attend continuing educational events around the state and around the country to keep myself updated on estate administration issues that affect our valued clients.

The following are 132 not-so-obvious reasons for emailing us, calling us, or coming by our office to discuss our handling your important estate administration needs:

1. We have a passion for providing amazing estate administration legal services.
2. We conduct training sessions EVERY DAY (from 8:30am - 9:00am) for me and our incredible employees so that everyone in our office is up to date on the latest and greatest things that we can do for our valued clients.
3. We have created and maintained written business systems for how we do what we do. This allows us to give high quality predictable legal services to every client we serve.
4. We love to use technology to speed up the delivery of our estate administration legal services. For example, when someone comes in to discuss our Louisiana succession legal services, we already have the initial set of court documents prepared and ready for their signature, even though they have not even retained our law firm yet.
5. We love improving the way we deliver customer service. You won't wait unnecessarily in our reception area. Instead, you will be greeted by name from a friendly service provider.
6. We have hundreds of written testimonials from satisfied clients. If you want to read them all, just come by our office or ask to read them. They are awesome.
7. I'm currently writing my second book for Louisiana residents. It will teach you how to make sure that a Louisiana succession is handled quickly and professionally - from A to Z.
8. Our mission is to use our Louisiana succession legal services to enhance the relationships of Louisiana families.
9. We abhor hourly rate work. This promotes inefficiency and delays.
10. We intend to transform our broken legal services industry.
11. Our clients are invited to monthly educational events (teleseminars, webinars, live events).
12. We can't stand to get in the middle of messy family disputes. We'd much rather see family members communicate professionally and improve relationships.
13. Since all uncontested Louisiana Successions DO NOT require a single court appearance, we can handle successions in ALL 64 LOUISIANA PARISHES.

If you want to look into how we may assist you with your important Louisiana Succession proceeding, simply send me an email at paul@rabalaislaw.com, call me toll-free at 866-491-3884, or come by our convenient and comfortable home office in Baton Rouge. It will cost you nothing to look into our estate administration services. Don't be shy - I'm certain you will be impressed with your initial contact.

Paul Rabalais

The One Day Probate

Whoever said a Louisiana Succession/Probate takes a long time didn't see what we did yesterday.

I got a call Saturday morning from a client/friend. His 89 year old mother had died a couple of hours earlier. We talked for a few minutes about what records would be required to start the succession process. We agreed that he'd give me a call the following Monday morning but he had a lot on his plate because funeral arrangements were being made and family members were flying in.

Nonetheless, he called Monday morning to touch base. After we got off the phone, I called his mother's investment advisor who immediately faxed to my office a detailed list of her holdings. There were a few other assets that his mother owned and remarkably we were able to quickly have a copy of the Will, car title, bank account information, family information, and other information that somtimes takes weeks to gather.

I challenged my paralegal, Stephanie, to prepare all the succession documents that same day, and I told my friend to come in to the office at 3:00 with his two sisters (all of whom were from out of town), and we'd have the complete succession pleadings ready for their signatures.

They came by at 3:00pm. Everything was ready to sign. We had a short visit about their parents (who lived a few doors down from me at one time), and we signed the entire succession pleadings. Today we filed all of the succession documents at the couthouse.

It is likely that we will have all of the court Judgment of Possession back in our office before the family even receives the death certificates. The fact that the family and all of their advisors were available, accessible, and organized, permitted us to conclude this matter quickly.

I've never had a succession finished on the first business day after someone passed away. But thanks to everyone being on the ball and organized, we were able to complete these succession matters in little time.

While we can't promise that your loved one's succession will be complete in one day, we can promise that we will do our best to provide legal services promptly and professionally. If you would like us to give you a free fixed fee quote for succession legal costs, feel free to send me an email at paul@rabalaislaw.com, or give my office a call at 225-329-2450. I'll want to talk or email with you to find out the relevant circumstances, and then provide you with a written plan to complete all matters related to the succession.

Paul Rabalais