WILLS, LIVING WILLS, POWERS OF ATTORNEY, AND SUCCESSIONS
Wills, Living Wills, Powers of Attorney, and Successions
Independent Administration of Estates - New law streamlines succession proceedings, by F. Jean Pharis.
Independent Administration of Succession Proceedings - Helpful New Law

By Act 974 of the Louisiana Legislature of 2001, a very significant change in the law has been made as affects the administration of decedents’ estates. This law became effective on August 15, 2001.

It is more likely than not that there will be no necessity for an administration of your estate following your death. It is most likely that the only legal proceedings necessary will be a simple recognition and possession proceedings. However, if an administration is necessary it could be very beneficial to your legatees and your estate to take advantage of the new law which permits an "Independent Administration" of your estate.

Though you may feel that an administration on your estate will be unnecessary at the present time, circumstances do change. I would recommend that you execute a Codicil to your Will providing for an independent administration of your estate, to cover this contingency. Of course, if you desire to amend any provision in your prior wills such amendments could be provided for in the Codicil also.

If you made your Last Will & Testament prior to 1997, the effective date of the limited abolishment of forced heirship, you may wish to review your Will with that in mind.

The most obvious advantages of an independent administration, following the court recognition of the Will, and the appointment or confirmation of the independent executor/executrix by the court are the following:

The independent executor/executrix can proceed with the administration of the estate without the necessity of obtaining a court order for sales, (including the sales of automobiles, other items of personal property and real estate), leases, mortgages, or entering into other contracts, payments of debts of the decedent or administration expenses, filing of legal actions to enforce and defend succession rights for claims made against the succession, and making partial distributions to legatees prior to completion of succession proceedings. Any distribution of legacies requires prior payment of inheritance taxes; These actions may be taken without filing a request with the court that he/she desires authority, no notice or newspaper advertisement is required, there is no delay in waiting for oppositions to be filed pursuant to such advertisement, nor is there a need for homologating (obtaining permission) from the court to act following the delays which are necessary for the foregoing actions to take place as with successions not under independent administration; Savings in court costs, newspaper advertising and attorney’s fees; and, Relief from the necessity of filing an annual account by the executor/executrix, unless a legatee or creditor, should file a demand with the court requesting the filing of an annual or interim account, an order which could be granted only after the independent executor/executrix was given an opportunity for hearing and to show that the filing of such account was unnecessary. The independent executor/executrix is not relieved of the necessity for maintaining strict records of the receipt of all funds coming in to his/her hands as such, expenditures made, and tangible personal and real property of the estate in his possession or under his control. Sufficient records should be kept to file a final account which would be required at the close of the administration of the estate and the sending of the legatees into possession. The filing of the final account may be waived on the agreement of all legatees. In all matters of estate business the independent executor/executrix is required to act as a prudent administrator with respect to all estate matters.

The handling of an estate under an independent administration can be provided for in the Will, or Codicil. If not provided for in the Will or Codicil, the independent administration may proceed only if all legatees give their written agreement at the time the application for the appointment of an independent executor/executrix is made, or subsequently if agreement can be reached.

If an administration of your estate is unnecessary, and all legatees are in agreement, your legatees may proceed in the usual manner by the filing of a simple recognition and possession proceedings, and there will be no need to confirm the independent executor/executrix.

It is my opinion that the legal proceedings after death should commence as early as possible to:
  1. Preserve and protest the will and the estate property until rightful legatees or heirs can be put in possession;
  2. Make a record of all assets while records are available
  3. Make sure that all debts owed to the deceased are collected
  4. Pay all debts of the deceased and the estate promptly, including any income, inheritance, or estate taxes
  5. Make sure that rightful heirs and legatees are put in possession of the property falling to them.
If you wish to discuss any of these matters with F. Jean Pharis, he will be happy to set up a time for a consultation if you will give his office a call, or to discuss the matter over the telephone if that would adequately satisfy any question that you might have.


Do you need a Will?
You may have heard that in Louisiana, you don't really need a will.

While it is true that the law provides for an orderly succession if you don't have one, wills give definite advantages to your heirs that don't otherwise exist.

For example, if you or your spouse should die while your minor children are living, you can choose who would be their guardians. If a surviving spouse remarries, should he or she continue to have the use of your heirs' property? Who will be the executor of your estate? If an heir dies before you do, what provisions might you want to make for their children? If you have children from a previous marriage, what can they force your present spouse to do? Can the surviving husband or wife sell the heirship property? These are issues that can and should be decided through a will.

Also, what if one of you is incapacitated and cannot physically or mentally take care of his affairs? What if either or you have to be artificially kept alive because of illness or accident, who should make the decision to keep you on life support?

At Pharis Law Offices, we have eased many people's minds and made it easier on their heirs and loved ones by having clients execute three documents, a last will and testament, a (durable) power of attorney, and a living will. We provide safe deposit box storage for clients who need it and can help heirs with probate matters.

Why you need a lawyer to draft your Will.

We have seen this several times in our experience: A wife or husband brings in her or his deceased mate's will. It has been drafted by a Notary or military office and contains confusing, contradictory, and illegal provisions. Sometimes the will is invalid.

Attorneys are required to take courses that teach about the rules of wills and succession law. Attorneys are professionals who should have experience in drafting wills and know the trouble spots and traps to avoid. Why should you place yourself in the hands of someone who doesn't have the education or experience in actually probating (have a court recognize and follow through on) your will? Please consult an experienced attorney on this very important subject.

What are Living Wills?
LIVING WILLS.

A living will is a directive to your doctor or hospital that you have decided not to allow "heroic" or extensive lifesaving measures if you have no chance of recovery. This condition could occur if you become irreparably brain damaged, for example, as a result of brain trauma in an accident, or if you suffer a stroke. Since you are unable to make the choice on your own, you delegate that responsibility to your family members and the doctor. At Pharis Law Offices, we encourage clients to execute not only a Living Will, but simultaneously a will and a durable power of attorney.

How can powers of attorney help?
Powers of attorney.

Powers of attorney are often executed in the following scenarios: a real estate transaction for a person living out of state, a spouse traveling long distances for long periods of time, or from one business partner or another for a particular purpose. These powers of attorney can be revoked at any time. At Pharis Law Offices, we have developed comprehensive powers of attorney forms as well as more specific ones as the occasion may arise.

As it is called in common law states, a "durable power of attorney," is a power of attorney that continues in effect past the point that the person giving it has the capacity to realize what they have given. This is often most useful in the case of an elderly parent who is physically or mentally disabled and needs a spouse or child to care for his affairs directly with banks, insurance companies, and creditors.

At Pharis Law Offices, we often encourage elderly clients to execute not only a durable power of attorney, but simultaneously a will and Living Will.

Successions (what to do when you become an heir).
A succession is a legal proceeding wherein the heirs of the deceased person are recognized, his property is listed, and a will, if there is one, is probated (recognized by the court as the last will and testament and put into effect).

We often hear from people, why do I have to open a succession for a deceased parent or other relative? What are the penalties if I don't? How much will it cost?

Successions are most important where someone dies owning real estate. The heirs want and deserve a "clean title" to the property. Real estate laws require, for the owner's and general public's protection, that all real estate titles be of public record (recorded at the courthouse of the parish in which the land is located). Further, if a transaction is not of public record, a person not a party to the unrecorded sale can ignore it. A succession judgment that refers to real estate by its legal description can be recorded and supply the link in the "chain of title" between the deceased person and his or her heirs. Then, in later transactions with the property, all heirs can be fairly compensated and not left out of the transaction, and the person who buys it gets a clean title.

Bank accounts, stock holdings, notes, and bonds should be listed in the succession judgment, or the bank or stock issuer doesn't have to recognize the heirs on their books. The judgment routinely orders all institutions to recognize the heirs on their books and pay any credits, dividends, or note payments to the heirs, and puts the force of the law behind the order.

The succession representative, called an administrator (if no will) or executor (a person named in the will) has to right to be substituted as a party in an ongoing lawsuit the deceased person may have been involved in. An "administration" of a succession will halt bill collections until the property and exact amount of the bills can be determined. This can be very important if there is lengthily last illness with big medical bills that Medicaire/Medicaid or insurance must sort out and pay.

Also, the administrator or executor will make sure that any specific property willed to others will be delivered and a receipt obtained. The succession attorney actually does much of the work and advises the administrator or executor on his or her rights and responsibilities.

Fees in succession matters usually depend on how much work is involved. Where there are large estates, there is almost always more work involved. More real estate to research and describe, more banks and other institutions to contact, and usually a will to probate. Bank boxes, will searches, and titled vehicles often present more time and effort for the attorney for the administrator or executor. Therefore, more is charged in those situations. Our policy is to explain the fee at the outset, but it is almost always hard to determine how much time and effort the attorney will devote, so therefore, the fee is usually based on less than five percent of the estate's value. For small estates, a flat rate is usually charged.

At Pharis Law Offices, we have extensive experience in the law of successions and estates in Louisiana.

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