Steve Roberts Attorney at Law

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Wills & Trusts

Types of Wills
Forced Heirs
Gifts
Living Wills
Trusts
Tax & Estate Planning

Wills themselves are not that complicated unless large values of assets are involved. Once assets reach over the million dollar mark, there is usually a necessity to investigate whether or not a complicated Will and perhaps Trusts could benefit the estate.

The Federal Government has made recent changes to various estate tax exemptions and other tax schemes such that it is important to meet with an attorney to properly manage large assets so that taxes can be eliminated when possible, and at a minimum deferred or minimized.

Current federal law allows for greater and greater estate tax exemptions and gift tax exemptions, and also allows for the deferral of taxes on a spouse's estate until the remaining spouse passes away.

In order to take advantage of all of these federal tax advantages, Wills and Trusts must be drafted correctly to channel proceeds and assets into various trusts so as to be recognized by the Federal Government to either be tax exempt or be subject to tax deferral, thereby allowing the surviving spouse use of those assets during their lifetime without penalty under Federal law.

The State estate taxes are a different issue and are handled independently of the Federal estate tax issues, but all tax issues must be recognized and every attempt must be made to foresee what the estate may need at the time of your passing so as to minimize taxes, both federal and state, and provide your surviving spouse and dependants with the most beneficial tax structure possible.

Types of Wills

The most common form of Will in Louisiana at this time is a Statutory Will that is produced in a certain form and witnessed by a Notary and two witnesses in order to comply with Louisiana law. It is very important that everything is done correctly with regard to the preparation of the Will, both in its written form and in how it is executed so that the Will is valid at the time of the person's death. Something as simple as failing to date one of the pages, or sign the Will in certain places would render it null and then Louisiana law would take control of your assets, instead of your assets being distributed pursuant to the wishes of your Will. Therefore, it's very important that you seek the advice of an attorney before making a Will.

There are circumstances wherein writing your own personal Will can create a valid Will, however, many of these "homemade" Wills are not enforced because the party writing the Will does not understand Louisiana law and inevitably includes some sort of clause in the Will that will render the Will null and void. There are prohibitions as to certain types of gifts, and if in fact the Will is not drafted correctly and all gifts and directions made in accordance with Louisiana law, it can result in the entire Will being invalidated.

Also, a handwritten Will must be in a certain form or it is not valid.

Thus, it is not recommended that anyone try to prepare a homemade Will. Instead, you should make an appointment to come in for a free consultation and retain Steve Roberts to draft your Will. The only way that you can be certain that your Will is valid and that your wishes will be carried out is to have an attorney review your situation completely, discuss your wishes, and reduce those wishes to writing in a valid Will that will be recognized by the Courts of Louisiana.

Forced Heirs

In Louisiana, constitution mandates forced heirship. There were some turbulent periods in the 1980's wherein the Louisiana legislature amended the old forced heirship laws wherein any heir, no matter how old, was considered to be a forced heir.

The legislature amended the law such that forced heirs are limited to only children that are 23 years of age or younger at the time of the persons death. Thus, persons 24 and older are no longer forced heirs.

Therefore, Louisiana does have forced heirship but it is only applicable to descendants that are 23 years old or younger at the time of the decedent's death.

The only way to fully understand the concept of forced heirship and determine what percentages of your estate must be passed to forced heirs, if applicable, is to make an appointment for a free consultation regarding those issues.

Gifts

Gifts are subject to both State and Federal taxes, unless certain guidelines are met. Many people intend to attempt to reduce the State taxes by giving gifts. However, the tax free amount that can be given is limited. In order to understand fully the ramifications of giving gifts to your family members, or otherwise, you should make an appointment for a free consultation.

Also, laws prohibit giving away your entire estate during your lifetime, or giving away such a large portion that you can no longer support yourself. Thus, before making any gifts of any significant value at all, you should make an appointment for a free consultation.

Living Wills

Living wills are intended to provide medical health care professionals with the instructions that you should not be maintained on life support systems if in fact there is no reasonable chance of your survival.

Many families are faced with a situation wherein medical healthcare professionals will not unplug machines, or withhold food and water to a person who is in a comatose state and has no chance of recovery. This causes extended suffering for the family, astronomical medical bills that are unwarranted, and often places both the grieving family and the medical healthcare professionals in diametrically opposed positions. The doctors have to maintain a patient's life in order to uphold the oaths of the healthcare professionals, but the family knows it would be in the best interest of the ill party to be allowed to pass away and end the suffering.

If you do not have a living will, it will be difficult for the medical healthcare professionals to unplug machinery, or allow you to die peacefully. Thus, it is imperative if you do not want to be maintained in some sort of comatose state for an extended period, to have a living will to order for healthcare professionals to allow you to die peacefully if in fact there is no reasonable basis to believe that you will ever make a recovery.

Louisiana law provides various guidelines that must be met to produce a living will and this is a rather simple document that can be produced at short order and is usually prepared along with a Last Will and Testament so that a complete package can be made that will provide the family with the security and certainty needed during such emotional and tragic times.

Make an appointment for a free consultation.

Trusts

Trusts have various uses, but there are mainly two. One is when an estate would be left in the hands of small children or young persons that are not yet capable or responsible enough to handle and manage the estate. Under those circumstances, parents often need to name a trustee in order to care for the children's estate and manage the assets, with the assets eventually being released to the children as they reach adult age, usually in increments as the children become older and older.

The other common use of a trust is to create different trusts to manage various portions of an estate so to comply with Federal Law in order to avoid estate taxes, all as was eluded to earlier in the introduction to the Wills & Trusts section.

Trusts can be extremely complicated, depending on the wishes of the parties, but for the most part a simple trust to manage the estate on behalf of children is easy to create and can be made in addition to your Last Will and Testament with very little additional expense.

Make an appointment for a free consultation.

Estate Taxes

Of course, all foregoing paragraphs touch on tax and estate planning. This issue is becoming more and more complicated in that the Federal government has continued to amend estate tax laws. There is foreseeable legislation in the near future that will continue to amend and alter the goals of the estate planner and the issues that must be addressed.

If you have an estate that is reaching the million dollar mark or anywhere near that amount, you definitely need to speak to an attorney who will work closely with a certified public accountant familiar with the estate tax laws in order to make certain that your Last Will and Testament and all trust documents are modified routinely when the law changes so as to take advantage of all federal laws in such a way to reduce the estate taxes.

All of these considerations can be extremely complicated and it seems that new strategies emerge on the horizon all the time. This is a continually changing area of the law.

Make an appointment for a free consultation.


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