Lafayette & New Iberia Estate Planning/Succession Attorneys

Your Last Will and Testament

A Will is only one aspect of a complete estate plan. If someone passes away without having created a Will, it is called dying “intestate.” In this case, the State where the deceased person resides will have specific rules regarding how the assets should be distributed among surviving relatives. The deceased and their loved ones are then at the mercy of those specific laws in terms of who will inherit. Here are some general things to keep in mind about Wills:

• A will does not go into effect until the person dies, so it cannot help manage their affairs if they become incapacitated due to an illness or injury.
• A will does not help an estate avoid probate. In fact, a will is a legal document submitted to the probate court, so it basically gives admission to Probate.
• Documenting your choice of guardians for your minor children is important so that their welfare is not left up to chance in the event of your death. If you do not specify who you would like to raise your minor children, family members could end up fighting over custody, and your minor children could be put into the care of someone you would not have chosen.

Trusts

Trusts are versatile legal instruments that come in many different forms, serving various purposes, including investment, taxes or personal planning. At its core, a trust is an entity with three separate parties: the person who creates the trust (the Settlor), the person who manages the trust (the Trustee), and the persons for whose benefit the trust is created (the Beneficiaries). Depending on the type of trust created, all three parties can be the same person or a married couple, or three unique individuals or entities. For example, with a revocable trust, the Settlors often designate themselves as the Trustees who manage the assets in the trust for their own benefit as Beneficiaries. On the other hand, with an irrevocable trust, the Settlors often designate themselves or a loved one as the Trustee, who will manage the assets in the trust for the benefit of their descendants as Beneficiaries.

There are several advantages to setting up a trust, such as avoiding probate court. As a rule, assets in certain types of trust are transferred to those persons named as beneficiaries immediately upon the death of the person who created the trust without having to go through succession proceedings. Also, some trusts offer tax benefits for both the Settlor and the Beneficiaries. Trusts can be used to protect assets from creditors or to provide for the Trustee to manage and invest property on behalf of the Beneficiaries. If well-drafted, trusts can also continue to be effective even if the Settlor dies or becomes incapacitated.

Powers of Attorney

A power of attorney is a legal document created under Louisiana’s mandate laws that allows another person (the Mandatory) to act on behalf of the person (the Principal) granting the authority to do so. The extent of this authority Is determined by the terms of the document, which can range from broad to very specific. All powers of attorney become void after the death of the creator and, if properly written, may also be rescinded if the creator becomes incapacitated or unable to make or communicate decisions. A durable power of attorney should be used when you want to assign decision-making power to another in the event you do become incapacitated. You should update your Durable Power of Attorney frequently, as medical providers and financial institutions may be hesitant to honor a power of attorney they consider to be outdated.

Successions & Probate

When a person dies, their debts must be paid, and their assets transferred to the heirs or legatees of the deceased person. “Probate” is the common law term for the court process of transferring title to assets of a deceased person’s estate. In Louisiana, this process is referred to as a “succession.” The terms “probate” and “succession” are sometimes used interchangeably in Louisiana.

Estate property is anything you own that has not been placed in a trust prior to death or has some other form of title transfer when you die. If you don’t have a Will, state law determines who inherits your assets. However, if you have a valid Will, your wishes outlined in the Will determine who will get your estate property. Either way, this process can be complicated, and our Lafayette estate planning attorneys can advise you on how best to proceed.

Louisiana Law & Wills

It is essential to have a legally sound Last Will and Testament in place to protect your family. A qualified estate planning attorney in Lafayette with experience in Louisiana law can help you create a Will that meets your unique needs and ensures that your property is distributed according to your wishes. A will gives you the ability to make decisions that can lower or remove the estate tax, as well as name an executor who can take care of your assets, pay off any debts, and distribute your belongings to your heirs. You’re also able to appoint a guardian for minor children (called a “tutor” under Louisiana law) in a will. Plus, trusts can be created for grandchildren, heirs with special needs, or those not currently mature enough to handle money responsibly.

If a last will and testament does not adhere to the prescribed form and Louisiana Civil Code, then it is invalid. If this problem arises, it creates immense difficulties for family members who are trying to follow the final wishes of their deceased loved one. By taking the time to draft a well-crafted will, you can avoid these issues by specifying precisely who you want to inherit your property – regardless of your marital status. For instance, you decide to legacy all of your Uncle Joe’s possessions to your children, or only select belongings like heirlooms. The one outlier is called a “forced heir” but we’ll touch on that topic later.

A “Forced Heir” Under Louisiana Law

According to the Louisiana Civil Code, any child of the deceased who is younger than 24 years old or permanently incapable of taking care of themselves is considered a forced heir. A forced heir has the right to claim part of your estate even if you left all your property to someone else, including your spouse. However, married couples can leave a lifetime usufruct to the surviving spouse over the inheritance belonging to the forced heir so that they can benefit from this asset during their remaining life.

Determining What Is Included In Your Estate Under Louisiana Law

According to Louisiana law, if you are married your estate usually encompasses your separate property and half of the community property belonging to the marriage. Under Louisiana civil law, separate property is defined as:

• Property owned before marriage.
• Property inherited by one spouse during marriage.
• Property gifted to just one of the spouses during the marriage.

As defined by the Louisiana Civil Code, community property is any and all property that is acquired by either spouse during marriage. This property is generally owned equally by both spouses. However, there are some exceptions to this rule. A prenuptial agreement, or “marriage contract” as it’s called under Louisiana law, can limit what counts as community property. There are a lot of nuances when it comes to asset distribution. Luckily, a skilled Lafayette estate planning attorney can help you minimize or completely eliminate any risk.

Default Succession Under Louisiana Law

If somebody dies in Louisiana without a legally binding will, or with no will at all, then their assets are distributed according to a set order that differently treats separate and community property. In general, separate property is inherited as follows:

1. Children
2. Brothers and sisters
3. Parents
4. Spouse
5. Grandparents or other ascendants
6. Closest living relative
7. The State of Louisiana

The listed heir/s would inherit the separate property of the estate at each step. If no such heir/s exist, then the next heir/s down the list inherits all separate property. The deceased’s portion of community property from marriage is inherited in this order:

1. To children, with a usufruct to the surviving spouse
2. To the surviving spouse

If the deceased spouse had no surviving children or direct descendants, the separate property is inherited by others according to the order specified.

Contact Our Lafayette Estate Planning Attorneys Today

There are a number of things you can do to protect your wealth, businesses, and estates. Planning for powers of attorney, Medicaid, disability benefits, and probate can help ensure that if the unexpected happens, you and your family are taken care of. At Standard Law, our Lafayette estate planning attorneys are experts in elder law and have a strong reputation in the Acadiana community. Contact our office today to take the next steps in your estate planning and allows us to provide protection for both you and your family.