(The Advocate) - While estate planning is something that many of us don't like to think about — it raises the uncomfortable specter of our own demise, after all — failing to address it can have serious consequences.
In short, sorting out a will is vital to ensure your estate goes where you want it to after you're gone.
Get professional help
Estate law is complex but, as Brad Scott, from Scott Vicknair Law, said, it's important to do it by the book.
"We always tell people that having a bad will is probably worse than not having a will at all," Scott said.
"If you're going to have a will, you've got to make sure you do it right. Loose language can cause all kinds of problems in this state. It can ensure a lot of litigation," he said.
Don't assume your heirs will get along
Stories of families fighting over an estate are legion. Scott strongly advised against leaving everything to one person to sort out, adding that having a well-thought-out plan can further help avert destructive fighting.
"You're passing (down) legal ownership of your assets, and (your family) might not see eye to eye after you're gone," he said. "People are always telling me 'my parents would roll over in their grave if they could see what, say, my brother and sister were doing' … you want to try and protect them from themselves, and put as many instructions and details in there as you can."
Saying it doesn't necessarily make it so
Casually telling a family member that they can have a particular item — a painting, the family's cherished ’65 Ford Mustang, what have you — isn't legally binding.
"There's no such thing as a verbal will," Kent DeJean from Baton Rouge law firm Losavio & DeJean, said. "You can't just say verbally 'I want my house to go to so-and-so'. What happens if you don’t have a (written) will is the law says where your property will go, and that can go to persons you don’t necessarily want it to."
La. inheritance law has its quirks
In the event of someone not leaving a will, there are legal rules that direct where the deceased's estate goes. Of course, this can often go in ways they would not necessarily want.
In one quirk of Louisiana estate law, spouses don't automatically inherit from spouses: instead, in the first instance, the estate flows to direct descendants.
Other legal terms and concepts, including forced heirship and usufructs, also apply. Suffice to say, it can get complicated.
Think through leaving it all to spouse
Some people create what DeJean calls "I love you wills," where children are bypassed and the estate is left to the spouse. While not inherently unfair — every situation is, of course, different — these can lead to issues down the road, particularly with the elderly.
"When you're older this isn't something we'd recommend," DeJean said. "It can have catastrophic effects on planning for an older spouse."
Update your will and have backup plans
Life changes. A will written at one point in time may not necessarily reflect someone's wishes a few years down the line, while other life events (such as a recipient in a will dying) can also cause problems. Scott said keeping a will updated, and having backup plans, is important.
"One of the biggest things is to have a plan A, a plan B, and a plan C," he said. "That (goes) if you're going to name an executor or a power of attorney or anyone else … you always want to have multiple people named. If you don’t have backups then you can end up back in court having to figure those things out."
Don't forget living will, power of attorney
A living will (a medical directive about ending your life if on life support) and a power of attorney are also vitally important. Not having them taken care of can lead to the same types of expensive legal squabbling that a piecemeal or nonexistent will can.
"If you don’t have those documents you have to go through a legal process … that could be very expensive and time consuming," Scott said.
Hoping for the best isn't enough
While we all hope that nothing untoward will happen to us, that won't help if something actually does.
"Hope is not a plan," DeJean said. "I think people always hope that they're not going to be dying anytime soon, that the right person administers their estate, that people don't fight … (just hoping is) a recipe for disaster."
Every plan is different
Not having an up-to-date will can get ugly. In order to avoid conflict and turmoil, it's best to simply get it done.
"Everyone's situation is different," DeJean said. "You have to individually customize a plan for each individual … and it's critically important that those plans are put in writing. Otherwise you end up with a lot of commotion, and a lot of time, money and effort is wasted and a lot of unnecessary fighting happens. That's something nobody wants to see happen.
"An ounce of prevention is worth a pound of cure."
By Jack Barlow
June 5, 2023
