Posts Tagged ‘Louisiana Wills and Estates’

Estate Planning: Preparing a General Power of Attorney, Health Care Power of Attorney and Living Will

Estate Planning: Preparing a General Power of Attorney, Health Care Power of Attorney and Living Will

Author: Kevin Edler

In anticipation of death, many people prepare a last will and testament to express their testamentary intent after death.  Fewer people plan for the possibility of physical and/or mental incapacitation.  Preparing a general power of attorney, health care power of attorney and living will are ways that a person can put a plan together to address the possibility of incapacitation.

Physical and mental incapacitation can result from mental illness, disease, or even traumatic injury suffered in an accident.  Alzheimer’s disease or an automobile accident could leave a person unable to make consistent reasoned decisions concerning his financial affairs or even his health.  In the event that a person is physically or mentally unable to handle his affairs, family members may have to petition the court to have that person interdicted in order to make financial and health care decisions on his behalf.  This process can be very difficult, exhausting and expensive.  Powers of attorney and a living will can, in some instances, help avoid this process.

Black’s Law Dictionary defines a power of attorney as “an instrument granting someone authority to act as agent or attorney-in-fact for the grantor.”  Properly written, a general power of attorney can empower a person to act on an incapacitated person’s behalf in financial matters.  One could also execute a health care power of attorney that would grant authority to another to make health care decisions in the event of incapacitation.  An attorney-in-fact could have the ability to make financial and healthcare decisions without involving the court.

The last topic that I would like to cover is the “living will.”  A living will can make your final wishes known in the event of  “incurable injury, disease, or illness.”  A living will can direct medical personnel to refrain from applying life-sustaining procedures after two physicians have concluded that the application of such procedures would only “artificially prolong the dying process.”  In such a situation, a person’s living will could express his final desires about the application of life sustaining procedures.

Disclaimer: The information contained in this article is for general information purposes only. Nothing in this article is or should be considered legal advice. The information in this article is not intended to create an attorney-client relationship, and viewing or receipt of information from this article does not create an attorney-client relationship.

Estate Planning: Non-Probate Assets and Beneficiaries

Estate Planning: Non-Probate Assets and Beneficiaries

Author: Kevin Edler

I want to make a very small but important point about non-probate assets.  Non-probate assets are assets that are not listed as part of a Louisiana succession such as Annuities, Individual Retirement Accounts (IRA), Insurance Policies, and Qualified Retirement Plans.  The devolution of these assets upon death is not controlled by a decedent’s last will and testament.  Generally, the person listed as the beneficiary on these accounts will inherit these assets regardless of what the decedent’s last will and testament states.

I cannot overstate the importance of updating the beneficiaries on the aforementioned non-probate assets and understanding the consequences of listing particular beneficiaries.  Often non-probate assets such as IRAs and insurance policies are a person’s most valuable assets.  Failing to update beneficiaries on IRAs and insurance policies can lead to results that might cause a decedent to “roll over in his grave.”  Indeed, the thought of the bulk of one’s estate devolving to an ex-spouse or to an unintended recipient is a sobering one.

In light of the stakes, it is well worth the time to update your beneficiaries on your IRA, Insurance, Retirement, and Annuity accounts.  Moreover, it is just as important to understand the consequences of listing a particular individual as your beneficiary.  Individuals with questions regarding this topic should consult an attorney and/or a financial advisor.

Disclaimer: The information contained in this article is for general information purposes only. Nothing in this article is or should be considered legal advice. The information in this article is not intended to create an attorney-client relationship, and viewing or receipt of information from this article does not create an attorney-client relationship.

Are Children Forced Heirs in Louisiana?

Are Children Forced Heirs in Louisiana?

Author: Kevin Edler

Forced heirship in Louisiana has changed drastically over the past twenty years. Interestingly, Louisiana forced heirship laws derive from laws enacted in France after the French Revolution. After the revolution, France enacted laws intended to redistribute the wealth of the nobility. Instead of a nobleman leaving all of his land to his eldest son (and thereby maintaining the same class and power), laws were written to redistribute the land of the nobles and over time to eliminate the long-standing class of nobility. These laws required that property be distributed to one’s forced heirs upon death. (Please excuse this brief history aside and the possible inaccuracies and/or overgeneralizations).

In any case, prior to October 21, 1995, Louisiana law still provided for forced heirship on a much larger scale than exists today. On that date, the voters of Louisiana approved an Amendment to the Louisiana Constitution which reads:

Section 5. Successions, Forced Heirship and Trusts

(A) The legislature shall provide by law for uniform procedures of successions and for the rights of heirs or legatees and for testate and intestate succession. Except as provided in Paragraph B of this Section, forced heirship is abolished in this state.
(B) The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also classify as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law. Trusts may be authorized by law and the forced portion may be placed in trust. Article 12, Section 5 Louisiana State Constitution. (emphasis added).

This amendment became effective on November 23, 1995 and remains unchanged today. Notice that the La Constitution still provides for forced heirship. This amendment requires the legislature to enact laws that designate persons who have not yet reached the age of 24 as forced heirs. The amendment also gives the legislature latitude to classify persons that are physically and mentally handicapped as forced heirs, set the amount of the forced portions, and also determine grounds in which forced heirs may be disinherited. Finally, the amendment provides that a forced heir’s forced share may be put in trust.

In short, Louisiana law still provides for forced heirship, but the scope of forced heirship has been narrowed significantly since the 1995 amendment. Although there are circumstances where grandchildren could be considered forced heirs, generally, forced heirs are children who have not yet reached the age of 24 and children (of any age) who are physically or mentally handicapped at the time of the decedent’s death.

Disclaimer: The information contained on this website is for general information purposes only. Nothing on this website is or should be considered legal advice. The information on this website is not intended to create an attorney-client relationship, and viewing or receipt of information from this website does not create an attorney-client relationship.



Disclaimer: The information contained on this website is for general information purposes only. Nothing on this website is or should be considered legal advice. The information on this website is not intended to create an attorney-client relationship, and viewing or receipt of information from this website does not create an attorney-client relationship.