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Thursday, July 7, 2016

When is a Person Unfit to Make a Will

Testamentary capacity refers to a person’s ability to understand and execute a will. As a general rule, most people who are over the age of eighteen are thought to be competent to make and sign the will. They must be able to understand that they are signing the will, they must understand the nature of the property being affected by the will, and they must remember and understand who is affected by the will. These are simple burdens to meet. However, there are a number of reasons a person might challenge a will based on testamentary capacity.

If the testator of a will suffers from paranoid delusions, he or she may make changes to a testamentary document based on beliefs that have no basis in reality. If a disinherited heir can show that a testator suffered from such insane delusions when the changes were made, he or she can have the will invalidated. Similarly a person suffering from dementia or Alzheimer’s disease may be declared unfit to make a will. If a person suffers from a mental or physical disability that prevents them from understanding from understanding that a will is an instrument that is meant to direct how assets are to be distributed in the event of his or her death, that person is not capable of executing a valid will.

It is not entirely uncommon that disinherited heirs complain that a caretaker or a new acquaintance brainwashed the testator into changing his or her will. This is not an accusation of incapacity to make the will, but rather a claim of undue influence. If the third party suggested making the changes, if the third party threatened to withhold care if the will was not changed, or if the third party did anything at all to produce a will that would not be the testator’s intent absent that influence, the will may be set aside for undue influence. Regardless of the reason for the challenge, these determinations will only be made after the testator’s death if the will is presented to a court and challenged. For this reason, it is especially important for the testator to be as thorough as possible in making an estate plan and making sure that any changes are made with the assistance of an experienced estate planning attorney.

Chip LoCoco

Estate Planning, Succession and Probate Attorney

(504) 483-2332


Monday, June 27, 2016

What are the Powers and Responsibilities of an Executor

An executor is responsible for the administration of an estate. The executor’s signature carries the same weight of the person whose estate is being administered. He or she must pay the deceased’s debts and then distribute the remaining assets of the estate. If any of the assets of the estate earn money, an executor must manage those assets responsibly. The process of doing so can be intimidating for an individual who has never done so before.

After a person passes away, the executor must locate the will and file it with the Court through a process called Probate. Copies of the death certificate should be obtained and sent to banks, creditors, and relevant government agencies like social security. He or she should set up a new bank account in the name of the estate. All income received for the deceased, such as remaining paychecks, rents from investment properties, and the collection of outstanding loans receivable should go into this separate bank account. Bills that need to be paid, like mortgage payments or tax bills, can be paid from this account. Assets should be maintained for the benefit of the estate’s heirs. An executor is under no obligation to contribute to an estate’s assets to pay the estate’s expenses.

An inventory of assets should be compiled and maintained by the executor at all times. An accounting of the estate’s assets, debts, income, and expenses should also be available upon request. If probate is not necessary to distribute the assets of an estate, the executor can elect not to enter probate. Assets may need to be sold in order to be distributed to the heirs. Only the executor can transfer title on behalf of an estate. If an estate becomes insolvent, the executor must declare bankruptcy on behalf of the estate. After debts are paid and assets are distributed, an executor must dispose of any property remaining. He or she may be required to appear in court on behalf of the estate if the will is challenged. For all of this trouble, an executor is permitted to take a fee from the estate’s assets. However, because the executor of an estate is usually a close family member, it is not uncommon for the executor to waive this fee. If any of these responsibilities are overwhelming for an executor, he or she may elect not to accept the position, or, if he or she has already accepted, may resign at any time.

If you have any questions about the process, please call us today.

Chip LoCoco

(504) 483-2332

www.neworleansestatelaw.com

 


Monday, May 23, 2016

What happens if you are bequeathed a car that no longer exists? The ABCs of a Lapsed Legacy.


If you’re involved in settling a loved one’s estate, you may come across the term: Lapsed Legacy. This describes what happens when something designated in a will no longer exists. Say, for example, your uncle dies and leaves for you in his will an old-school Mustang. However, if your uncle crashed the car two years before the will was probated and there’s nothing to leave, then that gift would be considered lapsed and you would receive nothing. This is why certain wills include language that says, “if owned by me at my death.


Read more . . .


Monday, May 16, 2016

What is Elder Law?


While the golden years are supposed to be filled with the joys of retirement, grandchildren and travel, they are seldomly enjoyed without various other complexities that individuals encounter as they age including deteriorating health, financial concerns and family disputes.  To meet these challenges, a unique area of law - elder law has taken on greater value to millions of aging Americans and their caregivers. This area encompasses many different legal disciplines, including estate planning, business succession planning, asset protection, Medicaid planning and veterans benefits. 

For over twenty-three years, Chip LoCoco, an Estate Planning and Elder Law Attorney, has handled all of these matters for many clients. Chip is knowledgeable on the wide array of issues that impact the elderly and can assist you or your loved ones with the following matters:

Healthcare planning including powers of attorneys and living wills
Estate planning 
Long-term care planning
Selecting the right long-term care facility 
Qualifying for public benefits such as Social Security, Medicaid and Veterans Benefits
Conservatorships and guardianships
Prevention of financial exploitation and elder abuse

Chip works diligently to make sure the seniors he represents are protected and continue to enjoy a high quality of life as they age.
Read more . . .


Wednesday, May 11, 2016

How does Life Insurance Fit into my Estate Plan?

Life insurance can be an integral part of an estate plan. Policies can be set up to be paid directly to the beneficiary, without the need to pass through the estate, and without the need for any taxes to be paid. Having a life insurance policy ensures that some assets will be liquid, so that debts and expenses can be paid quickly and easily without the need to dispose of assets. Beneficiaries can be changed at any time as can the benefit amount. The policy can be used to accumulate savings if the plan is surrendered before death. Life insurance policies, especially those purchased later in life, can pay out significantly more than what was invested into them. There are many benefits to purchasing a life insurance policy as part of an estate plan.

An attorney can set up a life insurance trust to help avoid estate taxes. A life insurance trust must be irrevocable, cannot be managed by the policy holder, and must be in place at least three years before the death of the policy holder. Any money received from the life insurance trust is not a part of the taxable estate. The need for this is rare as the exemption for estate taxes is currently almost five and a half million dollars, but it is a useful tool for some nonetheless.

There is a limit to how much life insurance an individual is permitted to purchase. A person may carry a multiple of his or her gross income which reduces with age. A twenty five year old can buy a policy worth thirty times his or her annual income. A sixty five year old may only purchase ten times his or her annual income worth of life insurance. This is an important factor to consider when deciding whether life insurance should be a part of your estate plan.

Life insurance as a part of estate planning is a complicated issue. It makes sense to consult with an estate attorney and a tax professional before meeting with an insurance broker. Both can help an individual understand the benefits of insurance over other means of transferring assets.

 

Vincent B. "Chip" LoCoco

504-483-2332


Thursday, March 17, 2016

Avoiding Common Mistakes in Estate Planning

Avoiding Common Mistakes in Estate Planning

Estate planning is designed to fulfill the wishes of a person after his or her death. Problems can easily arise, however, if the estate plan contains unanswered questions that can no longer be resolved after the person's demise. This can, and frequently does, lead to costly litigation counter-productive to the goals of the estate. It is important that the will be written in language that is clear and that the document has been well proofread because something as simple as a misplaced comma can significantly alter its meaning.

Although the law allows for an individual to handwrite their own will, in my law practice I have seen some tragic situations where the testator did not consider all the consequences or where the words used actually contrasted with other parts of the will causing confusion. 

Planning for every possible contingency is a significant part of estate planning. Tragic scenarios in which an estate planner’s loved ones predecease him or her, though uncomfortable, must be considered during the preparation of a will to avoid otherwise unforeseen conflicts. Business succession planning also must be considered in some instances.

Even trained professionals can make significant mistakes if they are not well versed in estate planning. An attorney who practices general law, while perfectly capable of preparing simple wills, may not understand the intricacies of trusts and tutorships or the use of usufructs. A great many attorneys, not aware of the tax consequences of bequests involving IRAs, may leave heirs with unnecessary financial obligations. If an attorney is not knowledgeable enough to ask the proper questions, he or she will be unable to prepare an estate plan that functions efficiently and ensures the proper distribution of the estate's assets.

In spite of the wealth of an individual, the estate may be cash deficient if that wealth is tied up in immovable property at the time of the individual's death.  If the executor of the estate does not have access to funds to pay the estate's bills or taxes, the heirs of the estate may run into trouble.

Consulting with attorneys who specialize in estate planning is the cornerstone of creating a plan to ensure that one's desires are carried out and that all the bases are covered. Estate planning attorneys serve as invaluable repositories of all information necessary to strategizing a plan that not only meets one's personal needs and desires, but is legally binding.

Chip LoCoco

(504) 483-2332


Friday, January 29, 2016

When should you Consider Medicaid Planning

There are many factors to consider when deciding whether or not to implement Medicaid planning.  If you’re in good health, now would be the prime time to do this planning. The main reason is that any Medicaid planning may entail using an irrevocable trust, or perhaps gifts to your children, which would incur a five-year look back for Medicaid qualification purposes. The use of an irrevocable trust to receive these gifts would provide more protection and in some cases more control for you.

As an example, if you were to gift assets directly to a child, that child could be sued or could go through a divorce, and those assets could be lost to a creditor or a divorcing spouse even though the child had intended to hold those assets intact in case they needed to be returned to you. If instead, you had used an irrevocable trust to receive the gifted assets, those assets would not have been considered the child’s and therefore would not have been lost to the child’s creditor or a divorcing spouse. You need to understand that doing this type of planning, and using the irrevocable trust, may mean that those assets are not available to you and therefore you need to be comfortable with that structure.

Depending upon the size of your estate, and your sources of income, perhaps you have sufficient assets to pay for your own care for quite some time. You should work closely with an attorney knowledgeable about Medicaid planning as well as a financial planner that can help identify your sources of income should you need long-term care. Also, you should look into whether or not you could qualify for long-term care insurance, and how much the premiums would be on that type of insurance.

Need more information, call me to discuss. 

Chip LoCoco

Many & LoCoco

 


Monday, January 25, 2016

You’ve Finally Done Your Healthcare Directives – Now What?

Healthcare directives can be vitally important, as recent cases, like that of Terry Schiavo, clearly brought to light. These important documents can mean the difference between your health care wishes being carried out or family members fighting over whether a loved one should be placed in a nursing home or removed from life support. Healthcare directives usually include both a healthcare power of attorney and a living will, or a form which is a combination of the two. In a healthcare power of attorney, an individual authorizes another individual to make healthcare decisions for him or her if the individual becomes unable to do so. A living will expresses an individual’s preferences about life support.

Once you have executed your healthcare directives, you may be uncertain as to what to do with them. First, you should make copies of the documents and inform others of their existence. In addition to your health care agent, persons you should consider notifying of the directives include family members and your health care providers.  Ideally, the originals should be kept in a place that is both safe and easily accessible.

You may wish to consider using a secure registry service to store your healthcare directives. Such services allow you to access healthcare directives any time and in any location with access to the Internet.  Some also allow the documents to be accessed via an automated fax-back service. In addition to providing the healthcare directives, many registries also allow caregivers to access information like emergency contacts, allergies, and other pertinent medical information.

You should review your healthcare directives regularly.  As individuals get older, their preferences about health care and life support change, and it’s important that your directives reflect your current health care wishes.   Of course, life changing events such as marriage, divorce, or the death of a loved one typically require changes in those documents to ensure that the people named in them are still those you wish to make decisions on your behalf.  

Moving to another state? Many states provide that healthcare directives prepared in another state are valid, but you should consult an attorney to make sure your wishes will be carried out in the manner you desire.

Establishing your healthcare directives can spare your family a great deal of anguish if they need to make decisions at a time that is already very emotionally-charged. By keeping the documents in a secure place, providing copies to loved ones, and reviewing them regularly, you can be more certain that your healthcare wishes will be carried out.

Call us for more information.

Vincent B. "Chip" LoCoco

(504) 483-2332

 

 


Thursday, January 21, 2016

Tax Basis

A tax basis is essentially the purchase price of a piece of property. Whenever that property is sold, the seller must pay taxes on the difference between the sale price and the original purchase price. This concept applies to all property, including stocks, bonds, vehicles, mechanical equipment, and real estate. If debts are assumed along with the purchase price, the principal amount of the debt will be included in the basis. The basis can be adjusted downwards when a person deducts depreciation costs on his or her income tax returns, and may be increased for capital investments towards improving the property that are not deducted for income tax purposes. Selling a property that has been held for a long time can carry a serious tax burden because of inflation, particularly when real estate prices have increased.

But, when an individual receives property as an inheritance, the tax basis is reset to whatever the fair market value is at the time of death of the decedent. This means that the heir would pay significantly less taxes if that property is sold by the beneficiary than if the original owner were to sell it and devise the money to his beneficiaries. This is a huge thing to consider when a parent wants to donate a home to the children during their lifetime. The children's cost basis would be the same as the parent. However, if the parent holds onto the property in their name and dies, and by will left the home to the children, then the children get that step up in basis. By doing  so, the children can avoid or greatly reduce a potential capital  gains tax.

If you would like more information, please call us today.

 Vincent B. "Chip" LoCoco

Attorney  (504) 483-2332

 

 


Wednesday, October 7, 2015

Glossary of Estate Planning Terms

So often, attorneys use words and phrases that to us we know exactly what the meaning is; yet we sometimes forget to explain to the client the exact meaning. Here is a glossary of some of the words used in estate planning.


Will - a written document specifying a person’s wishes concerning his or her property distribution upon his or her death.

In order to be enforced by a court of law, a will must be signed in accordance with the provisions set forth in the Louisiana Civil Code.

Testator/Testatrix - the person who signs the will. Testator is male. Testatrix is female.

Decedent - The person who died.

Testate - refers to a person dies with a will. The estate will pass down in accordance with the wishes of the decedent as spelled out in the will.

Intestate - refers to a person who dies without a will. The estate will pass down in accordance with the rules as laid out under Louisiana Law.

Heirs/Legatees- beneficiaries of an estate. Normally heirs refers to individuals who inherit an estate when the decedent dies without a will. Legatees are person who inherit because they are named in a will by the decedent.

Executor/Executrix - the individual given authority by the testator in the will to make decisions to put the testator’s written directions into effect. (Testate)

Once the will is entered into probate, the executor’s signature is equivalent to the testator’s. The executor has a legal duty to the heirs of the estate to act in the best interest of the estate, and may collect a fee for performing such service. The fee is set by law - 2 1/2 percent of the gross estate.

Administrator/Administratrix - the person who assumes the role of the executor when a person dies without a will (intestate).

The Administrator must apply with the local probate office and may be required to provide a bond to be held in escrow as collateral for control over the assets of the estate.

Codicil - an amendment to a will.

In order to be valid, a codicil must comply with all the requirements of Louisiana Law.

Olographic Will- a handwritten will. These wills are still recognized in Louisiana. They must be written, dated and signed by the testator at the end in his own handwriting. They do not need to be witnessed  Just an FYI - in every other State of the Union this wills are called Holographic wills. Somehow, Louisiana lost the "H"

Notarial Will - a typed will, usually drafted by an attorney, which is dated and signed before two witnesses and a Notary Public, adhering to other strict requirements of Louisiana Law. A very formal document.

Bequest - a gift given by the testator to his or her heirs through a will.

Residual Estate - the balance of a testator’s belongings after debts have been paid and specific bequests have been distributed. 

Usufruct - a bequest that gives an heir the right to have exclusive use of a property for the remainder of his or her life, but without the power to transfer such property upon the death of that heir. In other words, the usufructary does not have full ownership - Just the use and enjoyment. Another person or persons, known as the naked owners, have the other part of ownership. The naked owner does not have the right to use the property.

The property will transfer to the naked owner upon the ending of the usufructary - thus making the naked owner the full owner of the property at that time.

Per stirpes - a Latin phrase precisely translated as “by the branch” meaning that, if an heir named in the will dies before the testator, that heir’s share will be divided equally among that beneficiary’s own heirs.

While it is a good idea to have a basic understanding of fundamental estate planning vocabulary, this cannot serve as a substitute for the services of an experienced attorney.

Chip LoCoco

Attorney at Law

Many & LoCoco

www.neworleansestatelaw.com

(504) 483-2332


Tuesday, September 22, 2015

THE LAW OF FORCED HEIRSHIP IN LOUISIANA

Yes, it is true. Louisiana is the only state in the union that has forced heirship as a law. In estate planning, the concept of forced heirship is the one thing that most clients do not understand. So, I decided to write this article in an attempt to explain it in layman’s terms.

I. WHAT IS IT?

The simple explanation of the law of forced heirship is the requirement that a portion of a person’s estate must be left to his or her children, of a certain age, who under law are known as forced heirs.

II. WHAT ARE THE SOURCES OF THE LAW OF FORCED HEIRSHIP? 

Forced heirship is an ancient civilian concept. It was derived from Roman law, ultimately with influences from German, Spanish and French law. Roman law originally held that the father was the head and master of the family, and therefore, he could leave his estate to whomever he desired. Preservation of the property was most important. Eventually, Roman law developed the idea that the family needed to be protected. Thus, laws were developed that insured a child would inherit the property of the father. By the time the Roman Republic was coming to an end, the idea arose that a child could claim a legitimate portion, or legitime. Emperor Justinian provided for the amount of the legitime, as well as grounds for disherinson of a child.  So, over the course of time, Roman law had gone from protecting the property as the priority to instead protecting the family.The concept of forced heirship than was modified over many years with influences by German tribal laws when they conquered Rome, Spanish law and French Law.

III. HOW DID IT END UP IN LOUISIANA? 

Before the State of Louisiana was founded, the citizens here lived under French Law. After the Louisiana Purchase, President Jefferson strongly desired that our laws be assimilated into the English common Law of the rest of the United States. The citizens of Louisiana rejected President Jefferson’s wishes, and continued to follow the French Civil Code. This of course only goes to show that we have always been a little different down here. The first Louisiana Civil Code Digest was written in 1808. It was written completely in French, showing the strong French influence during this state’s infancy. Of course, within those pages was the law of Forced Heirship, which is still the law of Louisiana, but it has undergone changes over the years.

IV. WHO ARE FORCED HEIRS?

Originally, every child was considered to be a forced heir. That law, over the years, has been changed and amended many times and now the law, as stated in Louisiana Civil Code Article 1493, has defined forced heirs as those descendants of the decedent who at the time of the decedent’s death are twenty three (23) years of age or younger or who of any age, because of a mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.

V.      WHAT DO YOU NEED TO LEAVE TO YOUR FORCED HEIR? 

The law spells out the portion of your estate that must be left to your forced heir. This is called the legitime or “forced portion”. If you die, leaving one forced heir, the “forced portion” is one-quarter (1/4) of your estate. If you die with two or more children, then the “forced portion” is one-half (1/2) of your estate, which must be split among the forced heirs. Simply put, other than for specific grounds of disinherison recognized by law, if you leave a forced heir, he or she will receive a portion of your estate when you die.

VI. THE IMPORTANCE OF ESTATE PLANNING WITH FORCED HEIRS

Proper estate planning is imperative when you have a forced heir. Since we know a forced heir has to get a portion of the estate, an estate planning agenda can be developed to perhaps leave the forced portion to your child in trust, so that they cannot access the funds themselves, with said funds being controlled by a Trustee whom you appoint in your will. Additionally, that forced portion could also be subject to a usufruct to your spouse, whereby your spouse has full use of the property during her lifetime. The forced heir merely has what is called the “naked ownership” of his or her forced portion. This is allowed under Louisiana Law. Also, in blended family situations, forced heirship can get quite complicated, when both parents have forced heirs, but the children are from other spouses.

Estate planning is an attempt, with an attorney, to take your own personal situation and tailor make a plan to make your dreams and desires legal. That is the importance of a well-thought out estate plan and the use of a Last Will and Testament. This article is a very brief discussion of forced heirship. Please call us today if you would like more information or if you would like to set up a meeting to begin your own estate planning agenda.

 

 CHIP LoCOCO

ATTORNEY AT LAW

NEW ORLEANS, LA

www.neworleansestatelaw.com


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The Attorneys of Many & LoCoco assist clients throughout parts of Southern Louisiana, including but not limited to New Orleans, Metairie, Mandeville, Convington, Gretna, Arabi, Marrero, Westwego, Harvey, Chalmette, Kenner, and the Parishes of Orleans, Jefferson, St. Tammany, and St. Bernard, LA.



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