Beware! Homestead Exemption for Louisiana Bankruptcies Applies Only to A Single Person or Married Couple!

Debtors in Louisiana can be exempt from seizures in a Louisiana bankruptcy of equity in their home of $ 25,000.00. Further, if the obligations are related as a direct result of catastrophic or terminal illness or injury, the debtor can claim the full value of the home based on a value one year before seizure in bankruptcy.

It is important to remember that this exemption is available to a person individually or a married couple. However, the exemption is not available if the property is co-owned with another person that is not the spouse of the debtor. Therefore, a debtor could not claim the exemption if they own their property with a friend, girlfriend, boyfriend, relative or child.  This can have significant implications of causing a home to be seized by the trustee to provide the proceeds to creditors.

Therefore, persons that co-own their home with someone other than their spouse need to make sure that they disclose this fact to their attorney.

If you have any questions concerning bankruptcy, you should consult an experienced bankruptcy attorney.

 

Kent S. DeJean

 

 

 

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The Difficulties of Challenging a Will

Due to the increased number of diagnosed cases of Alzheimer’s disease and dementia, there are more potential cases of heirs challenging wills based on the decedent’s incapacity. Challenging a will in Louisiana courts, can be expensive, time consuming and emotionally difficult. These types of cases can be difficult to win.

It is important to remember that under Louisiana law, there is a presumption that the decedent has capacity. The burden is on the person challenging the will to show that the decedent lacked legal capacity to execute at will at the time it was signed. If there is a tie, the person challenging the will lose.

Unless the decedent was an interdicted or an unemancipated minor at the time they executed the will, proving incapacity can be very difficult to prove. The strength of the decedent’s treating medical doctor can be critical and pivotal as to the outcome. Many times, doctors are unwilling or unable to give a strong opinion as to a lack of capacity.

Also, practical factors should be considered prior to filing a lawsuit such as the amount the person challenging the will is willing to spend on litigation as well as the amount that can potentially be won.

Should you have any questions about succession, you should consult with an experienced estate planning attorney.

Kent S. DeJean

Will an Inheritance or Personal Injury Settlement Effect My Social Security Benefits?

It is not unusual for person’s receiving Social Security benefits to come into money or property by way of inheritance or personal injury settlement or judgment. To determine whether the receipt of this money or property will adversely affect your benefits, you must determine what type of Social Security benefits you are receiving.

There are two types are Social Security benefits: Supplemental Security Income (SSI) benefits and the other is called Social Security Disability (SSDI) benefits.

Social Security Disability benefits are paid to persons that have put in the required number of quarter payments over a specified period of time and is not needs based. A person drawing Social Security Disability benefits has no limits on what property they can own.  Therefore, the receipt of an inheritance or personal injury settlement will have no effect on a person receiving Social Security Disability benefits.

On the other hand, Supplemental Security Income benefits is a needs-based program. Claimants are entitled to these benefits only if they do not exceed certain property limits.  Therefore, the receipt of an inheritance or personal injury settlement may affect a person receiving Supplemental Security Income benefits.

If you are unsure what kind of benefits you are drawing, you can obtain this information the Social Security Administration in order to take preventive actions to avoid losing eligibility of your Supplemental Security Income benefits.

Social Security Disability: Don’t Avoid Treatment

It is not uncommon for people that have physical or mental disabilities to avoid treatment. When the medical records are reviewed, you will find long time periods where the claimant did not see a doctor for examinations or treatments.

These gaps, in the medical records can cause significant problems in proving a Social Security Disability (SDI) or Supplemental Security Income (SSI) claim. Without ongoing office visits, it will be difficult for a doctor to state whether your condition got better, worse or remained the same. It will be difficult for the Social Security Administration to assess your ongoing disability and determine its severity.  It will also be difficult for your treating doctor to assist you in providing an accurate diagnosis, determination of disability and plan for treatment.

Further, your medical treatment may require testing, treatment and therapy. All of these elements can also be used to prove your Social Security Disability case.

If you are seeing a doctor, you should continue to make and attend recommended office medical visits. You should also comply when your doctor prescribes testing, treatment and therapy.

Avoiding treatment can not only adversely affect your health and wellbeing, it can also hurt your claim with the Social Security Administration.

If you have any questions concerning Social Security claims, you should consult an experience Social Security attorney.

 

Kent S. DeJean

 

Taxpayers who owed tax this year should check their withholding soon

Taxpayers who owed additional tax when they filed their federal return earlier this year should do a “paycheck checkup” as soon as possible. The IRS Withholding Calculator and Publication 505, Tax Withholding and Estimated Tax, can help these taxpayers do a checkup and avoid another possibly bigger tax bill next year.

Following the Tax Cuts and Jobs Act, which was passed last year, there are many changes to the tax law that could affect these taxpayers. Doing a checkup now will help them make sure their current tax withholding is in line with their 2018 tax situation.

 

My Father’s Estate Has More Debts Than Assets. What Do I Do?

Not all estates have more assets than debts. Some decedents leave estates encumbered by large debts that exceed the value of their assets. We call these estates as being insolvent.

So often heirs or legatees rush to get assets and leave the debts of the estate unpaid. Under Louisiana law, you cannot just take the good parts of the estate and leave the bad parts of the estate that you don’t like.

Before rushing to take and expend assets, heirs and legatees should make sure that a complete accounting or listing of all assets and debts are made to determine whether they want their part of the estate or not.

If the estate is insolvent and the heir or legatee does not want their portion, they must execute a written Act of Renunciation. This act must be in writing. It cannot just be given verbally and it must take place after the death.

If heirs or legatees are unsure, they need to make sure that they do not informally accept the succession. Other than just preserving storing or administering, an heir or legatee should avoid expending or using any assets in a way that indicate that they have accepted the insolvent succession. It is important to remember that an acceptance of a succession can be in writing but, it also can be accepted by the acts of the heir or legatee.

Accepting a succession can have serious financial implications for the heir and legatee. They can be personally and financially responsible for the debts up to the amount that they have received.

To resolve debt issues of an estate, it may be necessary to administer an estate by appointing an executor or administrator before the heirs and legatees are placed into possession of any assets.

If you have questions or concerns regarding succession, you should consult an experienced estate attorney.

 

Kent S. DeJean

Communicating with The Social Security Administration

A Social Security claim is extremely important to any individual. To facilitate this claim, communications are a must.

I do not recommend that claimants communicate by telephone as a general rule. The reason I do not recommend this method of communication is the Social Security Administration is an enormous government entity. It is unlikely that your telephone message to a general number will be returned. It is fine to communicate by telephone if you have a specific worker and extension number to call.  Otherwise, I would not rely on this method.

A claimant should also be careful in using the mail to communicate with the Social Security Administration. It is easy for your correspondence to be misplaced. Therefore, I strongly urge that you always keep a copy of your letters and information mailed to the Social Security Administration. Never assume that the office has received your information. Follow up if you have not heard from the office. By keeping a copy of all documents sent to the office, you can avoid unpleasant delays and problems in re-constructing documents which were already sent.

I find the best way to communicate with the Social Security Administration is to go personally to the local office to speak to a worker. This can take some time and effort but, you are guaranteed to speak to someone about the status of your claim or it’s facilitation.

The Social Security Administration also allows you to make claims online. If you use this method, make sure that you save your claim or confirmation number as well as copies of your claim either electronically or in hard copies. If you haven’t heard from the Social Security Administration within a reasonable period of time, you should go into the local office to follow up.

 

Reasons to Update Your Will

It is important to remember that persons shouldn’t just execute their wills, store them and not worry about them. Wills should always be updated. Otherwise, there can be an absurd result regarding your estate when you die if your will hasn’t been updated.

The following are some examples of significant events in your life for which you should consult an attorney to update your will:

  1. You got married;
  2. Someone named in your will has died;
  3. You had a child;
  4. Your spouse or legatees have become disabled; or
  5. You got divorced.

Even if no significant events in your life have occurred, it is still good practice to meet with your attorney every five (5) years to update your will. The reason you should regularly consult with your attorney regarding updating your will, is that your assets can significantly change even in a brief period of time. Also, your relationships can change significantly over time. If your assets or relationships have changed, you may want to update your will to change who gets what.

If you have any questions regarding updating your will, you should consult an experienced estate attorney. Kent S. DeJean

Don’t Forget to Evaluate Possible Mental Disabilities

In applying for Social Security Disability or SSI benefits, attorneys and claimants generally focus on physical disabilities. These physical disabilities can include heart problems, back disorders, or respiratory problems.

Many times, possible mental disabilities are not considered. There can be many reasons that this failure to consider occurs. Claimants may not bring the mental symptoms up in applying or to the attorney’s attention. Claimants may be embarrassed or fail to acknowledge that they have a mental condition.

It is important to remember that mental disabilities can qualify a Claimant for Social Security Disability or SSI benefits just as physical disabilities can. Therefore, mental disabilities should not be ignored.

It is not unusual for persons with major physical disabilities to develop severe depression or anxiety. The Social Security Administration does not consider what caused the mental disability. The fact that the mental disability may have been caused by a physical disability does not matter.

If you are experiencing unusual symptoms such as anxiety, depression, sleeping problems, changes in eating, lack of energy, or isolation, you need to bring these symptoms to the attention of your attorney or Social Security worker.

 

Don’t Use Powers of Attorney After Principal Has Died!

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