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Why it is Essential to Have a Will

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When you die, it is important to leave your loved ones your last will and testament, as it is a set of legal instructions communicating your wishes regarding your dependents and how to distribute your properties post-mortem. If you have people who you love and care for, then creating a will for your peace of mind and their protection is the right thing to do. Though crafting your will can make you face some uncomfortable topics, like mortality, it does not compare to the difficulty your loved ones will face trying to handle the logistics problems in the absence of your will.

Curiously, while many people have experienced the death of their parent and the fallout that occurs if the parent had no will, the number of Americans making wills is dropping. Recently, a study by Caring.com identifies that in 2020, 25 percent fewer people have a will than in 2017. Surprisingly, older and middle-aged adults make up a substantial part of this group even though 30 percent of the people in the study believe you should have a will by the age of 35.

Many Americans feel they do not have enough assets to deem a will necessary, but unless you are destitute, you probably own a lot more than you think. Property ownership includes things like an individual as well as jointly owned bank accounts, stocks and bonds, retirement accounts, real estate, jewelry, vehicles, your online digital footprint, and even pets, are all part of your estate. You do not have to be wealthy, or even close to it, to benefit from having a will. Your will also protects your family and loved ones at a time when their focus should be on grieving your loss, not administering to legal issues because you did not have a will.

Wills are subject to state law. When you die without a will, it is known as dying intestate, and the determination of the distribution of your assets becomes the responsibility of a probate court. The probate court appoints an administrator who will act as your executor, identifying legal claims against your estate, paying off outstanding debts, and locating your legal heirs.

 

If you have an existing will we would be happy to review it to make sure it still reflects your wishes. If you don’t have a will we would be happy to help you create one that makes sense for your situation. Taking these steps now will bring you peace of mind, save your estate money, and protect your family and loved ones. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help with your long-term care needs.

Understanding the Succession (Probate) Process

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In Louisiana a succession (sometimes called “probate”) is the legal process for authenticating a deceased person’s will, reviewing their assets, paying their outstanding debts and taxes, and distributing what remains to their inheritors. After an asset-holder dies, the court will appoint a valid will’s executor to administer the probate process. In the absence of a will, the court may appoint an estate administrator to handle probate. Probate or succession law varies by state, but there are steps in the process that are common.

First, an executor is appointed and is normally the person named in the will. It is the executor’s responsibility to initiate the probate process. An executor can be a family member, a financial advisor, or any person the testator deemed capable of administering their estate. The executor files the will with the probate court, which initiates the probate process. A court officially appoints the executor as named in the will, giving the executor legal authority to act on the testator’s behalf.

The executor’s function is to locate and oversee all of the estate’s assets and to determine each asset’s value. The majority of the deceased’s assets are subject to the probate court, where the deceased lived at the time of their death. Real estate is an exception, and probate may extend to any county where the real estate is located.

The executor will pay any taxes and debts owed by the deceased from the estate. Creditors are given a limited time to make claims against the estate for any money owed to them. If the executor rejects the claim, the creditor may take them to court, where a probate judge will determine the debt’s validity. The executor is responsible for filing the deceased’s final, personal income tax returns. The executor’s last task, via court authorization, is to distribute what remains of the estate to the beneficiaries.

Some form of a succession is generally required to transfer title any asset or account. However, if there is no will, depending on the size of the estate, a court proceeding may be unnecessary and allow the heirs to transfer the title using a specially worded affidavit.

If a person dies without a will, they are said to have died intestate. An estate can also be deemed intestate if the will presented to the court is found to be invalid. The decedent’s assets of an intestate estate follow a similar probate process, beginning with the appointment of an administrator  if necessary. An administrator functions like an executor, receiving all legal claims against the estate, paying outstanding debts, and the decedent’s taxes.

Administrators must also seek out legal heirs, including surviving spouses, parents, and children. The probate court will determine the distribution of the estate among its legal heirs. In the absence of any family or other heirs, remaining assets go to the state.

The more complex or contested an estate is, the longer the succession can take to finalize. The longer the process, the higher the cost.  Although there are exceptions that can be made, the list of the estate’s assets is generally a matter of public record, so if you want to keep your estate private, it is best to pursue other estate planning options such as a trust.

As estate planning attorneys, we can help you determine what planning tools are best for you. Contact us to schedule time for a private conversation to further determine how we can help. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help.