Paul Rabalais' Louisiana Succession Law Blog

Helping 4 Generations of Family Memmbers

I've been working with a family recently and we set up the grandmother's estate plan to leave things for her daughter, but the daughter and her husband both passed away so now things going to go to the grandson of the grandmother so it has been 4 generations of this great family that we have been working with. We are now setting things up so that the grandson who has some young children and take some of this inheritance that he received from his parents passing away and set up some trusts for her children so that he knows that the rest of his life time no matter what happens to him, his two young daughters will always have funds set aside for them in trust, so that they have a head start on life and have a gift from their grandparents.

It is never too early and it is never too late to start estate planning. It can have a profound impact on your family, your relationships and your descendants. Just with some simple planning and some simple strategies you can make sure things stay in the family. If you have questions about that call at our toll free number, 866-491-3884. Have a great day!

WARNING: Don't Advoid Estate Tax Return Filings

I'd like to tell you about a matter that my partner in Metairie, Chris Kane and I are working on together. He has been working with a family in Louisiana in the Metairie area and the wife passed away back in 2004 and for one reason or another the family just never got around to filing an estate tax return. Chris Kane did some research and realized that the estate tax exemption back in 2004 was 1.5 million dollars and its 5 million dollars today. The family wants to make sure that there's not going to be these major IRS estate tax problems when the surviving spouse passes away in the future.

We are going to go ahead and revisit all of those tax issues; file an estate tax return, get all the property appraised as it should have been back in 2004 and 2005 and just eliminate all of those pervious tax concerns even though their mother passed away 9 years ago. Keep in mind, that if the value of an estate is such that an estate tax return is required it's never too late to get that stuff taken care of. If you never take care of it than interest and penalties can continue to accrue and you want to get that taken care of and nip that in the bud.

If you have concerns about whether estate tax returns should have been filed after a death of a family member you will want to give us a call at 866-491-3884. We can help you determine what you need to do to make sure there are no future tax problems for the family in the future. I'm Paul Rabalais, have a great day!

How I Answered 17 Different Succession Questions

I spoke with a gentleman yesterday on the phone and his name was Joe. He was named as the executor of his uncle’s succession. When I first talked to him, his uncle had died two days earlier and I asked him if he had any special concerns. Joe asked me 17 different questions. Joe had never been through this before and Joe had very good questions. So I just walked him through the steps from where he was yesterday, to getting the estate settled. From contacting different third parties, from getting confirmed as the executor, from opening up estate accounts at the bank, to selling assets as executor of the estate, from being what is called the “independent executor”, to compiling the list of assets to handling personal effects, to the sale of the property, to handing final medical expenses. We went through the whole thing from A to Z.

After about an hour, he felt that he was really relieved knowing that he had a plan to take care of everything he needed to take care of and he knew he could rely on us to handle it. So we started working with him yesterday and we look forward to working with Joe and walking through that process. It can be a complicated process especially if you are not working with someone that really understands those interknit Louisiana succession probate rules.

If you are an executor of estate and you want to make sure that you don’t get pushed around or you don’t get caught by a rule that you didn’t know about, make sure you check with us and we will walk you through that process. You can check out things on our website at www.rabalaislaw.com or you can give us a call state wide. We have 5 attorneys around the state that can handle successions and probates in any of the 64 Louisiana parishes.

Our toll free number is 866-491-3884. Have a great day!

Special Rules for Out of State Executor

Hey, I’m often asked whether an executor of a Louisiana succession or probate must be a Louisiana resident and the answer is no. I’m working with a family right now out of Washington and their father died. He lived in Louisiana, but all of the children live out of the state. So the question they had was can an executor live out of the state? The answer is yes, but there are a couple of rules that apply specifically to out of state executors.

 One, is an out of state executor must appoint someone in Louisiana as what’s called their registered agent for service of process and the reason for that is if the executor ever gets sued, the out of state executor must have named someone in Louisiana who can received those lawsuit papers.

That’s one factor for an out of state executor; the other factor is that when they go to open the estate account, the estate account must be opened at a Louisiana bank.

That is just one Louisiana state succession rules some out of state executors would prefer to open at estate account where they live, but it needs to be a Louisiana bank. You could get smacked with a pretty hefty penalty for not compiling with that rule.

So be aware of that, an out of state person can be an executor If you have any questions about becoming an executor of a succession or an Louisiana probate we handle those in all of the 64 Louisiana parishes. We would be happy to talk to you about it, give us a call at 866-491-3884. 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.

Double or Triple Probates When You Own Real Estate Outside of Louisiana

I was asked yesterday by a couple, "What should we do? We have property here in Louisiana and we also own some property in Mississippi and Arkansas. What's the easiest way to get this set up?" I told them their family was facing going through six different probates to get all of that stuff transferred when you pass away because they're a married couple and there's property in three states. Anytime you own real estate in another state when you pass away your family has to hire a law firm in that state to go through the probate in that county to get that property transferred. So they were very eager to set up a trust. We can put all that property into one trust to eliminate the need for the six different probates. So owning property in another state makes it difficult to settle the estate because you have to do multiple probates and get different lawyers, different law firms, different state procedures and it takes a long time. So just be aware that if you own some real estate in different states look into what's the easiest way to set that up to make things easy for your family to get that settled. I'm Paul Rabalais and have a great day!

Needing Children and Their Spouse's Cooperation When Mom Dies Without a Louisiana Last Will

 

 

I was a working with a super nice gentleman yesterday, John, whose wife died several years ago. John recently remarried and he never did a succession after his first wife died. I explained to John the Louisiana rules that apply when a married person dies without a Will. Since his wife died without a will, John inherited the usufruct of his wife's half of the community property. However, when he remarried, his usufruct, or his right to use those assets, terminated. So, his children are now the owners of his wife's half of the community property since he remarried. We had a long discussion and he has a great family and great kids who are very cooperative and supportive. He is trying to sell some things that are in his wife's name but he can't because they're frozen. We have to do the succession and transfer his wife's half of everything to the children first now since he has remarried. Then the children are going to sign some paperwork donating their one-half of John and his wife's property back to John so he can own the whole thing. John also has some special requests for when he passes away about his current wife being able to live in the home. The key is that he's fortunate he has cooperative and supportive children because he would be in a bit of a bind since he remarried and he has no right to any of his wife's community property. The lesson here is to plan this stuff in advance, get the legal documents done and then when somebody passes away, make sure you do what you need to do to get things transferred.

Is Louisiana Succession Really Necessary When Deceased Left a Clear Last Will?

 

We work with some great families getting estates settled after the death of a loved one. Occasionally we are asked, "Is a Succession really necessary if someone dies with a Will and they are clear about who the heirs are?" Sometimes they ask, "Can't we just take my Dad's Will and a death certificate to the bank and ask the bank to give us Dad's money?"

Well it does not work like that. A Succession is necessary even though the deceased left a Will when there are assets titled in the name of the deceased. The Will is filed at the courthouse along with a number of customized Succession documents including the detailed list of assets and debts, petitions, and a Judgment.

If the judge's office determines that all of the procedural rules have been followed, the judge will sign a Judgment of Possession which orders banks and others to transfer assets from the name of the deceased to the heirs named in the Will and in the Judgment of Possession.

We work with phenomenal families from all 64 Louisiana parishes in order to get estates settled. The fact that we embrace technology in our office allows us to get this done in lickety split, keeping suriviving heirs from suffering through delays and other stresses.

Succeessions Happen Twice for Married Couples

One of the major issues you should consider when planning for you and your spouse's passing is the court supervised succession procedure because this will be needed at both spouse's deaths if not properly planned for. One of the main goals we encounter with married couples involves avoiding the succession all together by setting up a Revocable Living Trust. The Revocable Living Trust is used to allow for immediate transfer of control over your property to your spouse and ultimately your heirs without any court supervision.

Why would you want to avoid a succession? A court supervised succession procedure costs at least $5,000 and can drag on anywhere from months to years. In this time, your heirs will encounter roadblocks when it comes to controlling and accessing the property left in your estate. Of major importance, successions procedures are public record and the value and contents of your estate can be viewed by any person with an internet connection.

A lot of people seem to forget that with married couples two sucessions must take place; one at the death of each spouse. This jsut doubles, the cost, the time, the headache, and the amount of information that is open to the public. That is why Revocable Living Trusts, which avoid successions, are a great tool for married couples. 

If you are interested in avoiding this succession procedure and would like to discuss your options give me a call in the New Orleans/Metairie Area at (504) 247-1980 or send an email to chris@rabalaislaw.com. On the Northshore, contact Brent Durham at (985) 246-3020 or brent@rabalaislaw.com. In Baton Rouge, contact Paul Rabalais at 225-329-2450 or paul@rabalaislaw.com.

Chris Kane, Attorney

Director, New Orleans Office

      

Fixing an Incorrect Judgment of Possession

I recently met with a client who was in a bind because the Judgment of Possession or "JOP" issued after her husband's death inaccurately reflected the terms of his will. Apparently the attorney responsible for overseeing her husband's succession forgot to mention include her 1/2 interest in the family home and the entirety of the home was left to her daughter subject to a lifetime usufruct for the wife.

This was incorrect because in Louisiana the home was considered community property. Upon the death of her husband, the wife legally owns 1/2 of all the community property in the husband's estate free and clear of the claims of the children. The inaccuracy of this JOP led to flaws in the retitling of the home. Only the daughter is listed on the new title, this makes the wife unable to sell her interest in the home and creates a real hindrance for Estate tax gifting and her other estate planning needs.

However all is not lost. We can file with the court to amend this JOP to make sure the wife's interest in the home is provided for. After the amendment is granted by the court, then we will have the home retitled to reflect the new and accurate Judgment of Possesion. At this point the wife will be able to exercise all of her rights as co-owner of the property.

If you have experienced problems with the succession for one of your loved ones and would like to discuss your options give me a call in the New Orleans/Metairie Area at (504) 247-1980 or send an email to chris@rabalaislaw.com. On the Northshore, contact Brent Durham at (985) 246-3020 or brent@rabalaislaw.com. In Baton Rouge, contact Paul Rabalais at 225-329-2450 or paul@rabalaislaw.com.

Chris Kane, Attorney

Director, New Orleans Office