Unfortunately, it is common for agents in powers of attorney to continue to use them to conduct financial business even after the principal has died. Once a principal has died, the agent and the principal’s family or legatees should consult with a succession attorney.
It is important to remember that powers of attorney should never be used to conduct business once the principal has died. The agent has no legal authority to conduct business. Under Louisiana law, the administration of assets is governed by succession law. It will necessary to obtain the proper authority of a court or obtain necessary documentation to obtain the authority to administer the assets and debts of the principal’s estate.
Since the agent lacks legal authority once the principal dies, any actions taken by the agent using the power of attorney to administer the Principal’s estate, can be challenged. This can subject the agent to possible civil litigation and criminal actions.
If you have any questions regarding powers or attorney or succession, please consult an experienced estate planning attorney. Kent S. DeJean
There is a large public misunderstanding that a will is something set in concrete, that doesn’t change and is to be signed and put away until death. Yet, it is important for people to review and update their wills regularly. Outdated wills can lead to absurd and unintended consequences upon your death.
Relationships can change. Family members can die. You might divorce. You may find yourself close to one person one day and then have difficulties in that relationship. You may find yourself now closer to another family member. Also, your estate can change. There are dramatic changes in a person’s property over time. If you keep an annual inventory, you will see marked changes every year when you go to update the inventory.
There are certain major life changes when people should review and revise their wills: If they are getting married, getting divorced, a person mentioned in the will has died, or adopted a child. These life changes will normally create significant revisions in a will.
Also, if you turn sixty-five (65), you will want to review your will. You will probably want to consider Medicaid planning, asset protection and probate avoidance in revising your will.
I normally recommend that people review their wills every four (4) years if none of the other events mentioned above occur. During a four (4) year time period, it is possible to see significant relationship or asset changes that may warrant a revision to your will.
If you have any questions concerning wills, you should consult an experienced estate planning attorney.
Kent S. DeJean
In Louisiana, the general answer to this question is no. Life insurance proceeds are not part of a succession. This can be confusing because both successions and life insurance claims both result from someone’s death. So, it is often assumed that they are handled together.
However, it is important to remember that life insurance is not part of the estate of the person that died. The decedent doesn’t own the life insurance proceeds. The insurance proceeds are contractual in that they are paid to the beneficiary on the condition of the decedent’s death.
So, if there is a beneficiary that has survived the decedent, that beneficiary does not have to open a succession with regard to those insurance proceeds. The surviving beneficiary will probably only have to submit a death certificate and the insurance company’s application to obtain the life insurance proceeds.
However, if the beneficiary named in the life insurance died before the decedent or the decedent named their estate as the beneficiary, these life insurance proceeds would have to be handled in the succession.
If you have any questions concerning successions, you should consult an experience estate planning attorney.
Kent S. DeJean
One of the biggest mistakes that people make in applying for Social Security benefits is that they believe and assume that the Social Security Administration is their advocate. They believe that the Social Security Administration is advocating for them and taking care of their cases. The truth is that the Social Security Administration is a federal administrative body to administer claims. Don’t get me wrong. The people that work with the Social Security Administration are good hard-working people.
But the Social Security Administration is not the claimant’s attorney. Although the Social Security Administration will assist to some degree in getting medical evidence, it is the responsibility of the clamant to obtain and submit medical evidence. The Social Security Administration will not assist a person in advocating the claimant’s claims. Without an attorney, claimant’s find that they are representing themselves. They will find that their claims have been denied because evidence was not received or important parts of their cases were not submitted. To add insult to injury, it is difficult to appeal these decisions.
It is very important that a claimant consult with an experienced attorney that handles Social Security cases. A claimant’s case is important to them. The process in obtaining benefits is a long one and often times, the claimant is experiencing financial distress. Time is of the essence. So, it is important that claimant make the most of their opportunity to make sure that their cases are being properly presented.
Kent S. DeJean
Please join us for a informative workshop on Tuesday May 22, 2018 at The Blake at Lafayette 400 Polly Lane, Lafayette, La. We are having 3 sessions at 9:30 am, 12:00 pm, and 6:00 pm. To register please call 225-892-9702
It is common for people to move to different states. Potential clients come to my office asking if it is necessary to execute a new will in Louisiana. The answer to the question is somewhat complex.
The legal answer is that the law does not require that you have a Louisiana will. The will of another state can be probated and recognized by a Louisiana Court. There is a special procedure under Louisiana law that allows heirs and legatees to have these out of state wills recognized legally.
The problem with out of state wills is that they are drafted according the laws of that other state. Louisiana law can be very different from other states. Terminology can be very different state to state. Also, certain legal concepts may exist in one and may either be very different or not exist in another.
Although Louisiana courts will attempt to comply with the wishes of the decedent in their out of state will, they still may be unable to implement the directions due to the difference in the law. Sometimes, it may be difficult to implement the intent because there is no such legal concept under Louisiana law.
It is advisable that you have your out of state will examined by a Louisiana attorney to determine whether you need to have a Louisiana will drafted and executed to make sure your intentions are recognized and implemented.
If you have any questions concerning wills, you should contact an experienced estate planning attorney.
Kent S. DeJean
You are invited to attend our Free Senior Work Shop on Wednesday, May 9, 2018 at 12:00pm and 6:00pm at the East Baton Rouge Library – Goodwood, 7711 Goodwood Blvd. Baton Rouge, LA. Please RSVP seating is limited. Please call to reserve 225-892-9702
One of the biggest things that motivates people to our law firm to engage in estate planning or updating their wills is when they go on an airplane trip. The thoughts to traveling high in the air in a large aircraft scares people into executing wills and powers of attorney. The perception is that flying is very dangerous. However, human perception is sometimes not based in reality.
What is your probability of dying in a commercial airplane crash? According to statistics, you have a one in 3.5 million chance of being involved in a commercial airplane crash where at least one person dies (not necessarily you).
In comparison, statistics show that you have a one in 100,000 chance of dying in an automobile accident. That’s right. You are at least 35 times more likely to die riding in a car accident today than if you got on a commercial aircraft.
So, what is the moral of the story? Instead of waiting to estate plan when you are taking a trip on a plane, you should be much more worried about estate planning today if you are riding in a car. One should not put off estate planning or the execution of powers of attorney. Our health and/or capacity is not guaranteed. Plan today!
If you have any questions about wills, estate planning or powers of attorney, contact an experienced estate planning attorney.
Kent S. DeJean
A living will is probably the most misnamed legal document.It has nothing to do with “living” and it’s not a “will”.
To put it bluntly, it is a directive to be allowed to die. A person that signs a living will is declaring that they be allowed to die if certain facts are present. In Louisiana, euthanasia is illegal. Certain elements have to all be met before a living will becomes effective. The required elements are as follows:
- The person must have an incurable injury, disease or illness
- This injury, disease or illness must be certified to be a terminal and irreversible condition by two (2) physicians (one of whom is the treating physician of that person) who have personally examined the person
- The physicians must determine that my death will occur whether or not life-sustaining procedures are utilized; and
- The application of life-sustaining procedures would serve only to prolong the dying process artificially
If all of these elements are met, the person may direct that all life-sustaining procedures be withheld or withdrawn. The person can also express a directive as to whether to allow food and water to be administered invasively if all the above elements are met.
The most common example of where all these required elements are met is if a person is in an incurable coma and whose life is being artificially prolonged by the use of a respirator.
A person interested in executing a living will, powers of attorney and a will, should consult an experienced estate planning attorney.
A Health Care Directive is a legal document where a person can express whether they want or don’t want to try medical treatment in certain specific medical situations. These documents can be very lengthy and can cover wide ranges in hypothetical medical situations. It can take a long period of time to complete these lengthy documents.
This document is very important because it does two very important things:
- It allows the person who executes this document to remain in control of their medical treatment even though they become incapacitated. By expressing their preferences, family members or friends know what the person wanted and didn’t want in medical treatment.
- It removes very difficult medical decisions for family members and friends to have to make. Medical decisions can be very difficult because they have to be made during very difficult emotional times. By executing a Health Care Directive, the decisions are made for the family members and friends. This makes it easier for family members and friends during this difficult time.
A person interested in executing a Health Care Directive as well as powers of attorney, living wills and wills should contact an experienced estate planning attorney.