Wills, Estate Planning, Successions, Elder Law & Medicaid Planning

In Louisiana, Probate is called Successions. When a resident dies and still owns assets, a Louisiana succession is necessary to transfer assets to the heirs.

 

A. Estate planning. Bernard Duhon takes a personalized approach to estate planning. A good, comprehensive estate plan may involve trusts, powers of attorney, and assets such as IRAs, life insurance policies, and annuities.

1) Will Formalities
You can write your own Will. There are technicalities that must be followed. You must be careful. It is best to consult your attorney.  A Will can be cancelled at any time. A new Will can be made or a codicil executed to add to or change the will. Because tax laws change a Will should be reviewed every few years.

 

2) Revocable and Irrevocable Trusts. In cases involving large estates, it may be necessary to establish an irrevocable trust in order to protect your assets from federal estate taxes.  Likewise, a living trust can be revocable by you.  Either way, it may be beneficial to involve a third party to help establish and execute the trust.  Bernard F. Duhon can do that for you.

3) LIVING WILL. The purpose of a Living Will is to allow you to make “end of life” decisions relating to your medical care.

4) DURABLE POWERS OF ATTORNEY

i.  The truth is an appointed agent is often necessary toward the end of life to manage an elderly person’s affairs.  It is better for you to determine who that person is while you can.

ii.   A Durable Power of Attorney is used to control all aspects of their personal care and medical treatment, including the right to decline medical treatment or to direct that it be stopped.  I often recommend my clients combine a general power of attorney to allow their designated representative to take care of their Assets.

iii.  The power of attorney can be amended or revoked at any time. Pain medication can be given to the individual as needed under any circumstances.

 

5)  INHERITANCE TAXES. There is no Louisiana Inheritance Tax.

      FEDERAL INHERITANCE TAXES
To owe Federal inheritance taxes the value of your estate must exceed $5,300,000.00 (to be gradually increased) For a married couple this means an estate of $10,600.00 will pay no Federal inheritance tax.
There are many simple things you can do to reduce or eliminate your heirs having to pay this tax. The key is to start planning early.
Estate planning can be a complicated endeavor. You should have a trusted legal advisor before you embark on this task.

6) Asset Preservation
Successfully preserving your assets for your heirs doesn’t just happen. It takes planning…in advance. As for Medicaid, a simple will is sometimes the worst thing you can do. Each plan has to be addressed with an end result in mind. Bernard F. Duhon helps clients keep their assets while planning for quality care in a nursing home or long-term assisted living facility. In order to succeed at this goal it is necessary to start with a good estate plan. Successful Medicaid planning often requires transferring your assets to your children, directly or in trust. The idea is to reduce your assets to the point where you qualify for Medicaid. This preserves your children’s inheritance. Medicaid planning is very technical. Done incorrectly, the law can penalize you for making gifts. The key is to plan carefully and early.

B) WHAT HAPPENS IF YOU DO NOT HAVE A WILL?
Louisiana law determines who gets your property. This is how it works generally:
1. If no children – spouse gets all the community property, your nearest blood relatives get your separate property.
2. If there are children
a) your spouse gets one-half of community property and the use of the other half until he or she remarries and
b) children share in the remaining one-half of the community and all your separate property;
c) If you have no spouse – children share equally;

3. If no relatives – the State of Louisiana receives the entire estate;

C) Forced Inheritance
Years ago, Louisiana required your children to inherit a portion of your estate. This has changed. If they, your children, are not disabled and twenty-four (24) years of age or older you may leave them nothing. To disinherit a child you must have a will.

        THIS INFORMATION IS GENERALIZED. YOU SHOULD CONSULT WITH AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION.

D) What is a Succession or Probate?
1. In Louisiana, Probate is called Successions. When a resident dies and still owns assets, a Louisiana succession is necessary to transfer assets to the heirs. Bernard F. Duhon has represented both executors and heirs in the succession process. The process involves submitting a will to the court, paying bills, and distributing assets to heirs.  Bernard F. Duhon represents clients in succession litigation and monitors successions handled by other attorneys.

 

A.) These are the things needed to begin the succession proceedings?
1. Death Certificate;
2. Expenses of deceased’s last illness;
3. All funeral expenses, including the funeral home, flowers, and headstone;
4. Copy of the will, and have the location of the original;
5. Number and location of a Safety deposit box;
6. Copy of the pink slips or the titles of all titled vehicles;
7. Copies of the Deeds or location of all property;
8. Copies of all bank statements for all accounts for the month of death;
9. Copy of stock broker statements, annuities or similar investments;
10. Copies of all stocks and bonds certificates;
11. A list of all debts owed at the time of death;
12. The full name, address and social security number of the surviving spouse and children;
13. The full name, address and social security number of individuals named in the will;
14. Copies of any insurance policies where the estate is named the beneficiary or if no beneficiary is named;
15. Copies of all property tax notices, and
16. You should prepare a complete list of all assets with the value for each item.

B.) After the information is collected and given to attorney he typically prepares a detailed list of all the assets and debts with values. The list is signed by the heirs. A Louisiana and possibly a federal estate tax return must be filed. Once state inheritance taxes are paid and there are no problems a petition is presented to the judge asking that the property and assets be taken out of the deceased’s name and placed into the heirs’ name.

This is usually uncontested fashion. The attorney’s work can sometimes be done within a few weeks of receiving all the necessary documents from the family.

C.) ADMINISTRATION
If there are absent heirs, dispute among the heirs or business to conduct, then the succession needs to be administered. This takes a longer period of time and costs increase proportionately. I avoid administering successions for my clients unless there is a special need.

2.) Avoiding Probate (Successions)
A. The only way to avoid successions in Louisiana is to have no land in your name and the value of your assets when you die is less than $75,000.00.

B. Living Trusts can be a means to avoid succession. All property is placed in a trust and upon the death of the grantor, the property passes to the named beneficiaries of the trust. Be careful! If property is not put in the trust, it will need to go through a succession. A Will may be needed to put all remaining property into the trust. If it is a revocable trust, you keep control over the property but don’t escape estate taxes nor is it Medicaid qualified. This means a lot of the problems associated with “Probate” must still be faced.

In Irrevocable trusts you have no control over the property but there may be less or no estate tax.

Trusts are not for everyone. You should carefully consult with your family lawyer before you make any decisions.

Resources/ Links

Louisiana Supreme Court - http://www.lasc.org/

Louisiana Register - http://www.state.la.us/osr/lac/lac.htm-

LSU Law library - http://www.law.lsu.edu/library/

Code of Federal Regulations - http://www.access.gpo.gov/nara/cfr/cfr-table-search.html-

Louisiana Secretary of State - http://www.sec.state.la.us/

Louisiana Bar Association - http://lsba.org/

Cajun Cyclist Bicycle Club - www.cajuncyclists.org 

Rotary International - http://www.rotary.org/

Rotary District 6200 - http://www.rotary6200.org/

Abbeville Rotary Club - http://www.abbevillerotary.org/

American Trial Lawyers - WWW.ATLANET.ORG

Sierra Club - http://www.sierraclub.chapters.la.org-

La State Government Portal  http://www.state.la.us/

Social Security on Line - http://www.ssa.gov/

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