A last will and testament is the document used to direct your executor to distribute assets and property according to your wishes. However, it’s not uncommon for disgruntled or distant family members or others to dispute the validity of the will. A recent article titled “5 Reasons A Law Will May Be Contested” from Vents Magazine explains the top five factors to keep in mind when preparing your will.  The five factors are discussed below, but read more to find THREE MORE that apply specifically to Louisiana.

#1: Undue influence is a commonly invoked reason for a challenge. If a potential beneficiary can prove the person making the will (the testator) was influenced by another person to make decisions they would not have otherwise made, a will challenge could be brought to court. Undue influence means the testator’s decision was significantly affected by a person who stood to gain something by the outcome of the will and made a concerted effort to change the testator’s mind.

Even if there was no evidence of fraud, any suspicion of the testator’s being influenced is enough for a court to accept a case. If you think someone unduly influenced a loved one, especially if they suffer from any mental frailties or dementia, you may have cause to bring a case.

#2: Fraud or Forgery.  Outright fraud or forgery is another reason for the will to be contested. If there have been many erasures or signature styles appear different from one document to another, there may have been fraud. An estate planning attorney should examine documents to evaluate whether there is enough cause for suspicion to challenge the will.

#3: Improper witnesses. The testator is required to sign the will with witnesses present. In some states, only one witness is required. In most states, two witnesses must be present to sign the will in front of the testator. A beneficiary may not be a witness to the signing of the will. Some states have changed laws to allow for remote signings in response to COVID. If the rules have not been followed, the will may be invalid.

#4: Mistaken identity seems farfetched. However, it is a common occurrence, especially when someone has a common name or more than one person in the family has the same name, and the document has not been properly signed or witnessed. This could create confusion and make the document vulnerable to a challenge. An experienced estate planning attorney will know how to prepare documents to withstand any challenges.

#5: Incapacity.  Capacity in the law means someone is able to understand the concept of a will and contents of the document they are signing, along with the identities of the people to whom they are leaving their assets. The person doesn’t need to have perfect mental health, so people with mild cognitive impairments, such as depression or anxiety, may make and sign a will. A medical opinion may be needed, if there might be any doubt as to whether a person had testamentary capacity when the will is signed.

The three factors that apply to Louisiana, and which very often come up because of reliance on unqualified Notaries or even attorneys that don’t understand Louisiana law pertaining to estate planning is as follows:

#6: Lack of an Attestation Clause.  Louisiana has some of the most stringent form requirements for a statutury will out of the 50 states.  Louisiana law provides that if your will does not have the “magic language” or an “attestation clause” your will is invalid.  The purpose and the words of the “attestation clause” are meant to reflect that when you signed your will you orally declared to the witnesses that you were signing your last will and testament, and the witnesses listended to you make this declaration.  Without an attestation clause

#7: Lack of a Signature on Each Page of the Will.  For your will to qualify as a statutory will in Louisiana you have to sign each page of the will.  Many states don’t have this requirement, and this (along with the “attestation clause” discussed above) is a major reason to avoid do-it-yourself form wills online.  And in addition to the “attestation clause” noted above, your will msut also be signed by two witnesses and notarized by a Notary Public.

#8: Forced Heirship.  Louisiana’s forced heirship law remains in place.  By default, a forced heir is any child under the age of 24.  But a forced heir can also be any other child over the age of 24 if that child (1) suffers from an inherited disease or medical affliction that renders the child incapable of caring for himself or his affairs; or (2) has a medical condition that could, in the future, potentially render the child incapable of caring for himself or his affairs.  If you disinherit a forced heir, this could trigger a will challenge if you don’t have your will drafted properly.

A will contest can be time-consuming and expensive, so keep these issues in mind, especially if the family includes some litigious individuals.

BOOK A CALL with me, Ted Vicknair, Louisiana Board Certified Estate Planning and Administration Specialist, Louisiana Board Certified Tax Law Specialist, and Louisiana CPA to learn more about estate planning in Louisiana, incapacity planning, and Louisiana asset protection.

If you liked this article, “Shocking! 8 Things That Can Spark a Will Contest” read also these additional articles: SCOTUS Rules States Can Recoup a Larger Share of Injury Settlements and Three Estate Planning Options for Your Art Collection and What Common Mistakes are Made with Living Trusts? and How Do I Maximize My IRA?

Reference: Vents Magazine (May 6, 2022) “5 Reasons A Law Will May Be Contested”

Unfortunately, not all families get along. If you are having problems with one of your children, you may not want them to benefit from your estate. There are several strategies for dealing with an estranged child in your estate plan.  This was the subject of an article last year from the Elizabethtown, Kentucky News-Enterprise entitled “Estate Planning Must Account for Estranged Children”

Depending on the level of estrangement and the reasons for the estrangement, the following are the main approaches for treating a child differently in your estate plan:

• Outright disinheritance. If you really do not want your child to receive anything from you, you can fully disinherit the child. To be safe, even if you are leaving a child nothing, you should specifically mention the child in the will and state that you are disinheriting him or her; failing to do so could make it easier for him or her to challenge the will. (You also need to specify whether you are disinheriting that child’s children, too.)  To avoid a will challenge or a forced heirship challenge, it is usually best to state the reasons why the child is being disinherited.

Disinheriting a child comes with a risk: He or she may contest the will in court, which can cost your estate time and money.  There are steps you can take to try preventing a will contest, including making sure your will is properly executed, writing a letter to the estranged child to explain your reasoning, and removing any appearance of undue influence. Keep in mind, however, that nothing is foolproof.  Also, even if you take all steps necessary to avoid a will challenge, the child can still claim to be a forced heir under Louisiana law.  Forced heirship is not gone forever as many think.  There are particular circumstances that might subject your estate to a forced heirship claim, and there are defenses, both stated in the Louisiana Civil Code (under “disinherison”) as well as other asset protection strategies you can take to avoid a forced heirship claim.  If you are disinherting a child (partially or fully), and you think your child might challenge the will or make a claim as a forced heir, you should speak with me to avoid estate litigation after your death.  

• Smaller inheritance. If you don’t want to disinherit your child entirely or wish to make it less likely the estranged child will contest the will, you may want to leave them an inheritance that is smaller than the amount you leave to other beneficiaries. Leaving a child a reduced inheritance may prevent him or her from contesting the will, especially if you include a no-contest clause (also called an “in terrorem clause”) in the will. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
• Put the inheritance in a trust. If the reason you do not want to leave your child an inheritance is because you are worried about how they will use the money (for example, if the child is addicted to substances, is financially irresponsible, or may have creditor issues), you can leave the child’s inheritance in a testamentary trust. You can provide instructions to the trustee on when and how the trustee should disburse the funds in the trust. For example, you can instruct the trustee to disburse the money in small increments or only if the child meets certain conditions, like staying drug- or alcohol-free or working a full-time job.

Figuring out how to treat an estranged child in your estate plan is complicated and emotional. As Leo Tolstoy wrote in Anna Karenina, “Happy families are all alike; every unhappy family is unhappy in its own way.” Talk to your attorney to determine the best strategy for you.

BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning, incapacity planning, and asset protection.

If you liked this article, “How to Deal with an Estranged Child in Your Estate Plan” read also these additional articles: Should a Reverse Mortgage Be Used for Long-Term Care? and Did Actor Ray Liotta Have an Estate Plan? and What Is Congress Doing to Guarantee a COLA Increase for Vets? and How Do I Store Estate Planning Documents?

Below, I have copied the text of the post and I will address each point from the perspective of Louisiana law since I am licensed in Louisiana and I am a Board Certified Estate Planning and Administration Specialist (Certified by the Louisiana Board of Legal Specialization).  Understand that estate and probate law is determined by the state of your residency when you die, and this post was likely made by someone who does not live in Louisiana.  Louisiana has some particular laws, and if you reside in Louisiana, Louisiana’s laws will apply to you, not the laws of some other state.  The original text is in bold and italics, and my response is below it.  So here we go!

Spreading this information for those of you that don’t have your affairs in order. Make sure all bank accounts have direct beneficiaries. The beneficiary need only go to the bank with your death certificate and an ID of their own.


This is partially true.  Let’s get certain things straight here.  In Louisiana, banks are allowed to permit you to designate a “payee on death”.  This is the person or persons to whom the bank is allowed to distribute your bank account balances after you die.  But these are not “beneficiaries” in the normal sense of the word.  In other words, many bank representatives are promoting these “payable on death” designations as “beneficiary designations” which they claim are a substitute for probate.  The persons who are payees upon death are not necessarily the persons entitled to the bank account balance.  Confusing?  Yes it is!  This topic is addressed in my other blog post:  What Is a POD Account? A litigation time bomb.  But here is a summary of it.  In general, by law, your assets are inherited by the people named in your will.  If you don’t have a will, your heirs are by default your children (equally), and if you are married, your children still inherit, but what they inherit is subject to a “usufruct” in favor of your spouse (assuming all of your property is community property).  In general, these are the people who are legally entitled to your bank account balance no matter what your payable on death designation says.  Here is the takeaway: if your “payable on death” designation that you make with the bank conflicts with who is legally entitled to inherit, your estate could wind up in litigation.  How do you protect yourself?  If you desire that your “payable on death” designation is to have legal effect, then it should mirror your last will and testament (or if you don’t have a last will and testament, then your payable on death designation should mirror the laws of intestacy).  In other words, if your Last Will and Testament says one thing and your “payable on death” designation with the bank says something else, this could result in a litigation nightmare and your wishes not being followed.  For example, if you have two children, each inheriting one-half of your estate, then you POD designation should reflect that.  If, however, your POD designation provides that only one of your children get the account(s), then the child who was not designated will have an incentive to sue the one named.  The bottom line is that a POD designation in Louisiana is not a “beneficiary designation.”


– TOD = Transfer On Death deed if you own a home. Completing this document and filing it with your county saves your heirs THOUSANDS. This document allows you to transfer ownership of your home to your designee. All they need to do is take their ID and your death certificate to the county building and the deed is signed over. Doing this will avoid the home having to go through probate.

Completely false.  This is Louisiana.  We have parishes, not counties, and the reference to “county” stongly suggests that the drafter of the original Facebook post was outside of Louisiana.  We do not have “transfer on death” deeds in Louisiana.  There is a substitute, however.  You can make a gift of your assets to your heirs with a retained “usufruct for life”, which in many ways will have the same effect as a TOD, including obtaining a “step up” in income tax basis of the property upon your death.  That is a topic for another blog post.  Nevertheless, this is often a poor substitute for a plan.  Why?  If you have more than one heir, the heirs may fight over the property, or fight over the right to live in it or use it after you pass away.  For some families this is not a concern.  If all of the children have their own home and everyone agrees to sell the property, then there might not be any issues.  But I have seen many instances in which one of the children is on the deed or inherits directly and then after the death of the parent refuses to sell the property so that the other children can obtain their share of the inheritance.  This can result in the children suing each other and the property potentially being sold at a sheriff’s sale in a licitatoin lawsuit.  A better plan might to to specify that your property be sold by your executor in your probate proceeding, and all of the heirs are distributed their share of the inheritance in cash.  With that said, if you only have one heir and that heir is deeded ownership (subject to your usufruct for life), this could be fine and it would avoid probate of this property.  The bottom line is DON’T LET THE PROBATE AVOIDANCE TAIL WAG THE DOG OF YOUR ESTATE PLAN.  Meet with an attorney to develop a plan, and it may be that a deed with a retained “usufruct for life” will work in your case, but maybe it won’t.  Your particular needs should drive your planning.

– Living Will: Allows one to put in writing exactly what you want done in the event you cannot speak for yourself when it comes to healthcare decisions


This is correct, and it is also known as a “Healthcare Directive”.  However, more important than a “Living Will” or “Healthcare Directive” is a Medical Power of Attorney (discussed below).  Generally, a hospital or physician will not “go to the mat” to “pull the plug” if the person you appoint as your Medical Power of Attorney wants something else done than what you expressed in your Living Will.

– Durable Power of Attorney: Allows one to designate a person to make legal decisions if one is no longer competent to do so.


This is correct, and it is a key estate planning document.  Howver, not all Durable Powers of Attorney are created equal.  Some are not broad enough to allow your powerholder to engage on your behalf in sophisticated estate planning to protect your assets in the event you are required to go into a nursing home.  I have often had clients come to me with a Durable Power of Attorney drafted by another attorney’s office (or through an online form service like “Legalzoom”), and the POA is not broad enough to allow me to engage in the type of sophisticated Medicaid Crisis Planning needed by a client who finds it necessary to go into a nursing home and qualify the client for Medicaid Long Term Care benefits.  In those cases, I am required to go through the costly Louisiana “interdiction” process to have a judge render the person judicially incompetent even if the client had a Durable Power of Attorney, which might be essentially defective for Medicaid Crisis Planning.

– Power of Attorney for Healthcare: This document allows one to designate someone to make healthcare decisions for their person.


This is correct, and in my opinion this document is a more important document than a Health Care Directive (or Living Will), because as a practical matter it will trump the Health Care Directive.  It allows your powerholder to make medical decisions for you in the event you are alive and cannot make those decisions yourself.  Accordingly, it is crucial that you have a candid discussion with your named powerholder about guidelines for your care in the event you are incapacitated.  In other words, you might want to tell your powerholder, “remove me from life support if I am on it for 3 days, and there is no improvement, and the doctors say that there is no prospect for improvement.”

– Last Will and Testament: Designates to whom personal belongings will go too.


This is correct.  But your Last Will and Testament can be a bit broader than that.  Your Last Will and Testament can appoint a person to handle your affairs after you die, known as your “Executor”.
Also, keep in mind that under Louisiana law, there are two forms of wills which are recognized: (1) a statutory will; and (2) an olographic will.

A statutory will (assuming your can read and are not blind) is one that has the following characteristics: (a) it is signed by you at the end of the will and on each page, (b) it is signed before a notary public and two (2) witnesses; and (c) has an “attestation clause” which generally recites facts pertaining to how and on what date the will was signed (in particular, it recites that the witnesses and the notary public swear that you OUT LOUD declared that what you were signing was your Last Will and Testament and you signed each and every page and in front of them).   Without this “attestation clause” your will is per se INVALID.  Keep in mind that to execute a “statutory will” you will have to hire an attorney or notary public to at least sign the will (even if it is not drafted by the attorney or notary public).  A statutory will has a certain advantage in that it does not have to be “proved” in a court of law and is presumed correct as long as the formalities of a statutory will are met.

By contrast, an “olographic will” is a will which is entirely hand-written by you in your own handwritring.  It cannot be typed, and it cannot be handwritten by someone else.  It also must be signed by you and dated by you in your own handwriting.  The advantage of an “olographic will” is that you don’t have to hire an attorney to draft it.  The disadvantage is that you didn’t hire an attorney to draft it, and as such, you did your own estate planning.  But for people of modest means and who cannot afford an attorney, an “olographic will” can often be the best choice.  Another slight disadvantage of an “olographic will” is that in your probate proceeding, you will need the affidavits of two (2) people who swear that they recognize your handwriting and that the Will was written in your handwriting.  Obviously, this type of a will can be challenged easier than a “statutory will”.

– Funeral Planning Declaration: allows one to say exactly one’s wishes as far as disposition of the body and the services.


This is a good idea, but it is not essential.  You can, if you wish, have a private discussion with your Executor regarding these matters.  If this is very important to you and you want your burial wishes to be legally binding, these wishes should be incorporated in your Last Will and Testament.  See above for the formalities for a valid Last Will and Testament.  If your funeral wishes are not in valid form, they are not necessarily binding, and the judge overseeing your probate case may or may not take these wishes into account.

– If the above documents are done, you can AVOID probate.


COMPLETELY FALSE.  Again, I am addressing Louisiana law.  It is false becasue in Louisiana “payable on death” designations you make with banks are merely “get out of jail free” cards to banks (they are not beneficiary designation instruments).  We do not have Transfer of Death – TOD – designations in Louisiana.  Your Last Will and Testament (and if you don’t have one, the intestate laws of Louisiana) will control the fate of your assets in a probate proceeding.  Nevertheless, there is a post-death administration procedure in Louisiana called an “Affidavit of Small Succession” that can apply in certain circumstances to avoid probate, but the qualification rules can be narrow.  Read about it here:  Affidavit of Small Succession in Louisiana.  Another way to avoid probate is through the use of a “Living Trust”, which can be a very good way to plan your estate, but which is beyond the scope of this article.

If all the above is not done, you have to open an estate account at the bank. All money that doesn’t have direct beneficiaries goes into this account. You have to have an attorney to open the estate account.


If you die with bank accounts in your name (and if you don’t, you still don’t qualify for the “Affidavit of Small Succession” procedure), your Executor or Administrator will have to open a succession (probate) on your behalf and all of your money will go into this account.  It is technically false to state that the “attorney will have to open the account.”  This is something that your Executor or Administrator will do after your attorney presents the correct legal documents with the court and the IRS (to obtain a tax identification number for the new account).  The only way to avoid probate is (1) to die without assets; (2) have modest enough assets to qualify for the “Affidavit of Small Succession” procedure (and none of those assets are bank accounts); or (3) have consulted with an attorney to adopt a probate avoidance plan which you have put in place before your death.

The attorney also has to publicize your passing in the newspaper or post publication at the county courthouse, to allow anyone to make a claim on your property. – It’s a complete PAIN.


In Louisiana, this does not apply.  However, there are certain cases in which publication is necessary to sell succession property which I won’t go into detail about here.

– Make a list of all banks and account numbers, all investment institutions with account numbers, lists of credit cards, utility accounts, etc. Leave clear instructions as to how and when these things are paid. Make sure heirs knows where life insurance policies are located.


This is a VERY good idea, particularly as it relates to life insurance policies.  The beneficiaries of your life insurance policies will not even know that there is a policy unless you either tell them or they can go through your records to find out that you had a policy.  Often, there is no other way to find out that you had a life insurance policy.  It is best to tell them before you die, and better yet to have a folder or letter of instruction indicating where all of your assets are located (including bank accounts, bank boxes, real estate, IRAs, 401(k)s, life insurance policies, burial policies and burial plans, paid-for burial vaults, and copies of registration certificates for all cars, trailers, and boats).

– Make 100% sure SOMEONE knows your Apple ID, bank ID account logins and passwords!


This can be important if your Apple ID is valuable.  Many people have purchased many albums through iTunes that are worth in the hundreds or even thousands of dollars.  It is less important (and sometimes inadvisable that) they know your bank account ID and passwords.  They will get access to these accounts in the probate proceeding.  But to this list I would add the passwords and digital vault location of any digital assets such cryptocurrencies (Bitcoin, etc.).

– Make sure you have titles for all vehicles, campers, etc!


This is a good idea, but if your loved ones have a copy of your registration certificate for each auto, trailer and boat, this will suffice.  They don’t need the original titles, just a description of the them in the registration certificates.

– MOST IMPORTANTLY!!!! – Talk with those closest to you and make all your wishes KNOWN. Talk to those whom you’ve designated, as well as those close to you whom you did not designate. – Do this to explain why your decisions were made and to avoid any lingering questions or hurt feelings.


This can be a good idea, but often isn’t.  If you want to treat all of your children equally, having an open discussion usually does not hurt.  However, if you intend to partially or fully disinherit a child, often the worst thing you can to is to have a discussion with the child about why you did what you did.  Some people don’t have the strength to “stick to their guns” with their children, and hurt feelings can result even if they do.  Often the worst thing you can do is get your heirs involved in your estate planning.  I have seen a lot of attempted arm twisting by children.  But each case is different and your mileage may vary depending on your family dynamics.

Hope this helps! Hope this lights a spark to encourage all your friends and family to take care of these things to make it easier for those we all leave behind!
My hope is that the above list at least helps you start an important conversation with your loved ones.


More important than having a conversation with loved ones is to have a conversation with a good estate planning attorney who can tailor a plan to your needs, wants and goals.  If you have spent a lifetime of acquiring and building wealth, don’t fritter it away with a “do-it-yourself” estate plan.  Keep in mind that nothing of what was posted in the original Facebook post addresses incapacity planning, avoiding nursing home poverty, tax planning, asset protection, Louisiana forced heirship, preserving assets for minor children (especially in the case of “blended families”), planning for the care of minor children, special needs planning for children with disabilities, or updating beneficiary designation forms for IRAs, 401(k)s, annuities and life insurance.  Do you care about these topics?  You should!

BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning, incapacity planning, and asset protection.  There is no cost or obligation.

If you liked this article, “Have You Seen this Facebook Post?” read also these additional articles: What Shouldn’t Be Put in a Will? and Can Medicine I Take Regularly Raise My Blood Pressure? and Warning Signs an Elderly Parent is Being Scammed and What are the Biggest Retirement Costs Often Overlooked?

Money Talks News’ recent article entitled “7 Things You Should Not Include in Your Will” suggests that as you think about what to put in your will, note that estate planning attorneys caution against including the following items.  Read the article for answers to the question”What Shouldn’t Be Put in a Will?”.  They are:

1. Leaving a buck to someone you want to disinherit. The thought is that leaving a single dollar to someone you are disinheriting will prevent them from contesting a will. However, it could have the opposite effect. Instead of keeping them out of the process, making someone an interested party allows them into the court proceedings. They could contest the will.  A better approach is to state the reasons you are disinheriting the person, as well as to put in some protections against a Louisiana forced heirship claim.  Yes, you can build in protections against a forced heirship claim, but few attorneys know about these secret steps.
2. Adding a non-contestability clause. Also know as “in terrorem” clauses, these clauses say that if someone contests the will, they forfeit any inheritance due to them. However, the problem with non-contestability clauses is that they only deter people who have something to lose in the will. If you are already fully disinheriting someone, this clause will have no effect as to them.  Rather than rely on one of these clauses, consult with an estate planning attorney about other options if you think a disgruntled relative might challenge your will, particularly regarding defenses to a forced heirship claim.
3. Retirement plans. Accounts like 401(k) plans and IRAs also should be left out of wills. That is because of tax implications. The IRS has rules about how these accounts are to be transferred if your heirs want to avoid a large tax bill. Instead, make sure that the beneficiaries are named on the accounts, so they can bypass the court system.
4. Trusts. Some people use their will to create a testamentary trust that holds and distributes assets after their death. Testamentary trusts do have their place in estate planning.  However, if you embed a trust in a will, you will still have to go through probate. Ask an experienced estate planning attorney about setting up a revocable – or living – trust to do the same thing without the need to go through probate.
5. Accounts with beneficiaries. Assign beneficiaries to accounts, whenever possible. Accounts that have beneficiaries, transfer-on-death provisions or joint owners can be passed to heirs .  However, be careful that any payable on death designations that you have established with banks are reflected in your last will and testament.  This is because in Louisiana, an account wiht a payable on death designation, without careful planning, is a lawsuit waiting to happen.  Read more about this topic at this blog post: What Is a POD Account? A litigation time bomb.
6. Detailed financial information. The bank accounts you have now might not be those you have when you die. As a result, there is no need to divvy up specific accounts among your heirs in a will. Rather you should create a financial cheat sheet outside of your will (that you can change as circumstances warrant) that will make it easy for your executor to locate all of your assets.
7. NOT APPLICABLE: Naming an out-of-state personal representative. This last point, listed in the Money Talks News’ article “What Shouldn’t Be Put in a Will?”does not apply to Louisiana.  In Louisiana, you can name an out-of-state succession representative.  However, the representative needs to appoint a person for service of process in Louisiana in the probate proceeding.  Usually the person appointed is the Louisiana attorney hired to help your succession representative administer your Louisiana probate proceeding.  In other words, feel free to name an out-of-state person as your succession representative if that person is the best qualified for the position.

BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning, incapacity planning, and asset protection.

If you liked this article, “What Shouldn’t Be Put in a Will?” read also these additional articles: Can Medicine I Take Regularly Raise My Blood Pressure? and Warning Signs an Elderly Parent is Being Scammed and What are the Biggest Retirement Costs Often Overlooked? and Is Estate Planning Affected by Property in Two States?

Reference: Money Talks News (March 29, 2022) “7 Things You Should Not Include in Your Will”

The three main structures a family should put in place to provide future protection for their child relate to money management, self-care and housing, says CNBC’s recent article entitled “If you have a child with special needs, here’s how to plan for their life after you pass.”

Money Management: If the child gets government benefits, such as Supplemental Security Income or Medicaid, parents will usually establish a special needs trust to shield assets to allow the child continued access to those benefits. A trustee oversees the funds and other trust provisions not under the child’s control. If a special needs trust is established, the trust won’t result in the child losing benefits.

Life Insurance. This is the cheapest way to fund a trust. That’s because you need to know what’s left over from your estate to care for the child, and this creates that certain bucket of money.

Self-Care: Parents must arrange the services their child will need to live independently or semi-independently, which may be overseen by a court-appointed curator (called a conservator or guardian in states other than Louisiana). This person makes all decisions regarding an individual’s financial and/or personal affairs. In the alterative, decisions may be made by a person with power of attorney, as well as the individual.

Parents may want to write a “letter of intent,” which is a guide for those who will care for the child in the future. This letter can cover family history, medical care, benefits, daily routines, diet, behavior management, residential arrangements, education, social life, career, religion and end-of-life decisions, according to the Autism Society.

Housing: With respect to future housing for the child, location is more important than the house itself. Parents should consider options beyond keeping their loved one in the family home. It’s more important to look at the individual and the interests and supports they might require. Parents may think of retiring to a community that supports the interests of the child. There is a trend toward more community-based living. State-administered Medicaid HCBS waiver programs allow people with disabilities to live in a house or apartment. The state, in turn, provides staffing for a group of similar residents. Sometimes, a group of families will purchase a collection of houses or condominiums. And people are rehabbing houses for roommate living, resulting in neighborhoods of people with special needs.

It’s critical to work with specialists in this type of planning, such as an experienced estate planning or elder law attorney.

BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning, incapacity planning, and asset protection.

If you liked this article, “How Do I Plan with a Special Needs Child?” read these additional articles: How Can I Clean Up My Estate Plan? and What OTC Drug Makes High Blood Pressure Worse? and Any Ideas How to Pay for Long-Term Care? and How Do I Give My Children the Summer Home?

Reference: CNBC (Dec. 6, 2021) “If you have a child with special needs, here’s how to plan for their life after you pass”

The Balance’s recent article entitled “What is Forced Heirship?” explains that this is a succession and estate planning concept peculiar to Louisiana.

Unfortunately, too many financial professionals, and even attorneys (believe it or not, even some attorneys that draft wills for their clients), give short shrift to this still very important Louisiana legal concept.  Let me say this clearly: Forced heirship in Louisiana has not been repealed.  It represents a pitfall for many Louisiana residents, their attorneys, and their financial advisors.

Through legislation, forced heirship was scaled back in the 1990s to cover by default any child that was under the age of 24.  However, still included in the definition of “forced heirs” are children of any age that have a physical or mental condition or disability such that the disability could potentially render the child from caring for himself or his estate.  That is broad and relatively nonspecific terminology, and it is the language of a lawyer’s dreams.

What does this mean for forced heirship in Louisiana?  Louisiana Courts of Appeal have ruled that a daughter with bipolar disorder (sometimes referred to as a person who suffers from manic-depression), even though she was an adult child over the age of 24, and even though she functioned fine with appropriate medication, was a forced heir because her bipolar could potentially render her incapable of caring for herself (her person) or her estate (her “stuff” or possessions).  Keep in mind that she was fine with medication, and the Court of Appeal ruled that she was nevertheless a forced heir.

You can imagine how a court might rule in the context of a person with heart disease, COPD, rheumatoid arthritis, or any other type of serious physical or mental ailment. Each case is fact specific to the person who argues he or she is a forced heir.

When it comes to Louisiana forced heirship, the reader should keep in mind that as people live longer, it is not uncommon for me to consult with clients who want to disinherit children who themselves are in old age with significant physical health conditions (not to mention mental health conditions).  It is not uncommon for a client in his 70s or 80s to have a child from a prior marriage who is in their 50s or 60s (that they wish to disinherit) who suffers from some significant physical or mental ailment.

Also keep in mind that the physical or mental ailment must be in place at the time of the parent’s death to prove one’s status as a forced heir, and the presumptive forced heir should have enough of a documented medical history to substantiate that the condition was present at that time.

If a person can substantiate his or her status as a “forced heir”, the Louisiana forced heir can make a claim in the succession of the parent, even is the forced heir was disinherited.

Defenses to forced heirship for the succession of the parent can include certain very limited fact patterns.  See Louisiana Civil Code art. 1621.  These include, among others:

1. The child has used physical violence of some sort against the parent (including but not limited to attempted murder);
2. The child is guilty of cruel treatment against the parent;
3. The child has used threats against the parent to hinder the parent from executing a last will and testament; or
4. The child, after reaching adulthood, has failed to communicate with the parent for a period of two (2) years;

However, in most cases, these defenses are not present.

Are there any other defenses to Louisiana forced heirship that a good estate planning attorney can draft into your estate planning documents to discourage a Louisiana forced heirship claim by a litigious heir?  Yes.  But your attorney must know about them.  Many don’t.

The estate planning attorney should be well versed in the secrets of Louisiana estate planning law, because there are some primary tools that the good estate planning attorney can use for you to discourage (or limit) a forced heirship claim.

A properly drafted last will and testament or living trust can have these defensive provisions drafted into them, and even if the child could potentially substantiate their claim as a forced heir, it would put the succession in the position of being able to negotiate a settlement with the forced heir.  That is because the forced heir, like most plaintiffs, wants cash now.  The prospect of the forced heir receiving something, much later, even after their death, is not an attractive prospect.

But these provisions must be put into your estate planning documents by a qualified estate planning attorney.  If Louisiana forced heirship is a concern, don’t default to making your own estate plan.  Seek out a qualified Louisiana estate planning attorney, preferably one that is Board Certified in Estate Planning and Administration.

Keep another thing in mind.  If your child is under the age of 18 (a forced heir by default), and you have an ex-spouse that would get sole custody of your child, that ex-spouse will be entitled to manage your assets that are inherited by your child.  That ex-spouse would be entitled, under default laws of Louisiana, to effectively use up the assets of your child who is a forced heir.  Don’t let this happen.  You can protect your assets in these situations as well, but you need an estate plan crafted in a particular way.

Special Needs Planning is something else to consider.  Many clients do not want to disinherit a forced heir, who is often a disabled child.  A disabled child is effectively a forced heir by default.  The portion going to the forced heir could result in the child being denied Medicaid or other government benefits.  This is because Medicaid will generally require that a recipient have $2,000 or less in assets to receive benefits.  Clients who do not want to disinherit a disabled child, but don’t want their children denied these benefits, which have often been received by the child for much of the child’s life, should have a specific estate plan that includes a Special Needs Trust (also called a Supplemental Needs Trust, or an SNT).  Talk to a qualified estate planning attorney today to discuss setting up an inter vivos or testamentary Special Needs Trust for your disabled or special needs heirs.

To learn more about estate planning topics particular to Louisiana, read these articles: Affidavit of Small Succession in Louisiana and Is My Will Void If I Get Divorced? and How Do I Write a Will?  This additional article might interest you: What Is the Required Minimum Distribution for 2021?

BOOK A CALL with me, Ted Vicknair, Board Certified Estate Planning and Administration Specialist, Board Certified Tax Law Specialist, and CPA to learn more about estate planning and asset protection.  If you are a forced heir that has been disinherited, and your parent was penny wise and pound foolish when it came to their estate plan (your parent didn’t have an attorney that knew about the secrets referred to in this article), contact me to assert your rights as a forced heir.  If you are a parent that may have one or more forced heirs, contact me today to put my defensive provisions into your estate plan.

Reference: The Balance (Feb. 13,2021) “What is Forced Heirship?”

This is a common question with second (or third marriages) and blended families. Questions frequently arise about Social Security, investments and savings, when the husband is divorced from the children’s mother and is paying child support until each child turns 18.

Nj.com’s recent article entitled “Are my husband’s kids from another marriage due assets when he dies?” says that these questions demonstrate why estate planning is critical to revisit after a divorce. You can take action to make certain that you’re taken care of, but if you don’t do this at the time of the divorce, it could be too late.

Let’s look at what you should know about beneficiaries and wills. First, beneficiary designations supersede a will. Beneficiary designations are applicable in the context of IRAs, 401(k)s, some Louisiana state retirement benefit programs, and life insurance policies and annuities.  Make sure that all beneficiaries and contingent beneficiaries are consistent with your wishes. These beneficiary designations on retirement accounts, pensions, life insurance policies, annuities and other accounts take precedence over what may be stated in a will.

Louisiana does not provide for beneficiary designations on certain assets like a house, vehicles, and real estate.  For married persons, some assets may be titled in the name of one spouse or in the names of both spouses.  Regardless, in Louisiana, all assets are presumed to be community property if the client is married, regardless of how the property may be titled.

When you enter into a subsequent marriage, both spouses should review and update their wills to have an idea of how a spouse’s estate would be disbursed at his or her death.  This is because substantial assets may be classified as “separate property” which would be distributed to the children of the spouse owning the separate property.

What else should one consider with respect to the question of “Do I Have to Give My Husband’s Children from First Marriage Anything When He Dies?” Keep in mind that Louisiana has not wholly repealed forced heirship.  In Louisiana, a forced heir is a child who was under the age of 24 at the time of death of their parent, or a child of any age, if that child suffered from a physical or mental condition at the time of the parent’s death that could potentially render that child unable to care for himself or his estate.  The amount that would have to be left to the forced heir will depend on how much property the parent died with, which is all of the parents separate property and one-half (1/2) of the parent’s community property.  Unfortunately, many practitioners don’t consider the implications of forced heirship, and it is a highly litigated issue in Louisiana.  You can protect yourself with proper planning if you have a forced heir (a child under the age of 24, or a child of any age if that child suffers from a physical or mental condition at the time of the parent’s death that could potentially render that child unable to care for himself or his estate).

If a husband is paying child support, divorce decrees may dictate that he purchase life insurance to cover that obligation upon his death. Therefore, there may be a life insurance policy for the children from a first marriage.  In such cases, if you are the husband, you may want to provide that the beneficiary of the policy is a trust for the children, assuming the court order mandating the policy would permits that.

With Social Security, if a spouse remains unmarried after the spouse’s death, he or she can claim a survivor spousal benefit as early as age 60, and if he or she is caring for the spouse’s children from the first marriage who are under 16 years of age, he or she may be entitled to receive a payment earlier. The deceased spouse’s unmarried children can also claim a survivor benefit until age 18, or longer if in high school or disabled.

Reference: nj.com (Aug. 4, 2021) “Are my husband’s kids from another marriage due assets when he dies?”

To learn more, read: How Do I Avoid Estate Planning Mistake with a Blended Family? and How to Do I Address an Estranged Child in My Estate Planning? and What Should Small Business Owners Know about Estate Planning? and Is a Cup of Joe Healthy for Seniors?

BOOK A CALL with Ted Vicknair today to find out more about how you can plan your future for your and your family’s security.

If you’ve been working for a while, you have an estate. If you’ve been working for a long time, you may even have a sizable estate, and between your home, insurance and growing retirement funds, your estate may reach the million dollar mark. That’s the good news. But the bad news might be an adult child with a drug or drinking problem, or a child who married a person who doesn’t deserve to inherit any part of your estate. Not to mention an ex-spouse or two. What will happen when you aren’t there to protect your estate?

There are steps to protect your estate and your family members, as described in the recent article “Is your son-in-law a jerk? Armor plate your estate” from Federal News Network.

Protect Your Estate from Rotten Son-In-Law, Step 1:  Don’t overlook beneficiary designations. Most employer-sponsored retirement and savings accounts have beneficiary designations to identify the people you wish to receive these assets when you die. Here’s an important fact to know: the beneficiary designation overrides any language in your last will and testament. If your beneficiary designation on an account names a child but your will gives your estate to your spouse, your child will receive assets in the account, and your spouse will not receive any proceeds from the account.

Protect Your Estate from Rotten Son-In-Law, Step 1:  Don’t try to sell a property for below-market value. The same goes for trying to remove assets from your ownership to qualify for Medicaid to cover long-term care costs. Selling your home to an adult child for $1 will not pass unnoticed. Estate taxes, gift taxes, income taxes and eligibility for government benefits can’t be avoided by this tactic.

Protect Your Estate from Rotten Son-In-Law, Step 2:  A common estate planning mistake is to name specific investments in a will. A will becomes part of the public record when it is probated. Providing details in a will is asking for trouble, especially if a nefarious family member is looking for assets. And if the sale or other disposition of the named asset before your death impacts bequests, your estate may be vulnerable to litigation.

Protect Your Estate from Rotten Son-In-Law, Step 3:  How will you leave real estate assets to heirs? Real estate assets can be problematic and need special consideration. Are you leaving shares to a vacation home or the family home? If kids or their spouses don’t get along, or one person wants to live in the home while others want to sell it, this could cause years of family fights.

Protect Your Estate from Rotten Son-In-Law, Step 4:  Making a bequest to a grandchild instead of to a troubled adult child. Minor children may not legally inherit property, so leaving assets to a grandchild does not avoid giving assets to an adult child. The most likely guardian will be their parent, undoing the attempt to keep assets out of the parent’s control.

Protect Your Estate from Rotten Son-In-Law, Step 5:  Include a residuary clause in a will or trust. Residuary clauses are used to dispose of assets not specifically mentioned in a will or trust. Your estate planning attorney will create the residuary clauses most appropriate for your unique situations.

Protect Your Estate from Rotten Son-In-Law, Step 6: Name that son-in-law the beneficiary of a discretionary trust.  If the son-in-law (or any other family member for that matter) has an issue with spending (such as a person that has a substance abuse issue), you can leave any legacy to that person in a trust, and specify that the trustee of the trust is allowed to make discretionary distributions for the beneficary.

Protect Your Estate from Rotten Son-In-Law, Step 7:  Prepare for the unexpected. Your estate plan can be designed to address the unexpected. If a primary beneficiary like a daughter or son divorces their spouse, a trust could prevent the ex from gaining access to your assets.

An effective estate plan, prepared with an experienced estate planning attorney, can plan for all of the “what ifs” to protect loved ones after you have passed.

To learn more about estate planning for blended familes, read these articles:  How Do I Avoid Estate Planning Mistake with a Blended Family? and Blended Families Create Estate Planning Challenges and How Does Medicaid Count Assets? and What Items Should Not Be in a Safe Deposit Box?

Reference: Federal News Network (Sep. 1, 2021) “Is your son-in-law a jerk? Armor plate your estate”

BOOK A CALL with Ted Vicknair today to find out more about how you can plan your future for your and your family’s security.

For most families, estate planning is a relatively straightforward task, protecting loved ones and preparing to distribute assets. But when parent-child relationships have frayed or fractured, estate planning becomes more complicated and emotional, according to the article from The News-Enterprise titled “Estate planning must account for estranged children.”

The relationship may be broken for any number of reasons. The child may have married an untrustworthy person, have addiction issues, or have made a series of hurtful decisions. In some families, the parents don’t even know why a break has occurred, only that they are shut out of lives of their children and grandchildren.

The reason for the estrangement impacts how the parents address their estate plan regarding the child. If there is an addiction problem, the parents may want to limit the child’s access to funds, and that can be accomplished with a trust and a trustee. However, if the situation is really bad, the parents may wish to completely disinherit the child. Both require considerable legal experience, especially if the child might contest the will.

There are three basic options for dealing with this situation.

One way to address an estranged child in your estate planning is to leave an outright gift of some kind, with no restrictions. The estranged child may receive a smaller inheritance, but not so small as to open the door to litigation.

A second way to address an estranged child in your estate planning is that you can create a testamentary trust in your last will. Testamentary trusts become effective at death, with funds going into the trust and controlled by a trustee. The heir will have no control over the assets, which are also protected from creditors, divorces, or scammers.

Third, the parent can create a living trust during the life of the parent, but which which continues after the parent’s death to protect the assets left to the child in much the same way that the testamentary trust does.  In both a testamentary trust and a living trust, the trustee can be empowered to make discretionary “sprinkling” distributions to the child as the child needs it (rather than risk an inheritance go directly to the child and risk being completely blown), and the trust can own a home for the child (to preven the child from selling the home to get cash).  Many of my clients who have children with substance abuse problems choose these options.

Third is the option to completely disinherit the child. That way the child will not be entitled to any portion of the estate. The language in the last will must be watertight and follow Louisiana’s laws exactly so there is no room for the disinheritance to be challenged.  Keep in mind that Louisiana has not completely repealed forced heirship, therefore your desire to disinherit a child may in some cases be limited by certain restrictions in the forced heirship provisions of the Louisiana Civil Code.

There needs to be language that clarifies whether the child’s descendants (grandchildren) are also being disinherited. If the child is disinherited but their children are not, the descendants will inherit the child’s share as if the child had predeceased his or her parents.

Some estate planning attorneys recommend writing a letter to the child to explain the reasoning behind their disinheritance. The letter could be seen as reinforcing the parent’s intent, but it may also open old wounds and have unexpected consequences.

Your estate planning attorney will be able to clarify the steps to be taken in your estate. This is a situation where it will be helpful to discuss the full details of the relationship so the correct plan can be put into place.

Fee free to read these other important articles on estate planning:  Why Is Estate Planning So Important? and Do I Make Too Much Money for Medicaid? and What Is the Best Way to Make Sure Children Can Handle an Inheritance? and What Is Fair in a Second Marriage and Estate Planning?

Reference: The News-Enterprise (July 20, 2021) “Estate planning must account for estranged children”

BOOK A CALL with Ted Vicknair today to find out more about how Louisiana’s unique laws can impact your estate planning.

If your parents don’t remember when they last reviewed their estate plan, then chances are it’s time for a review. Over the years, wishes, relationships and circumstances change, advises the recent article, “5 Reasons To Have Your Parents’ Estate Plan Reviewed,” from Forbes. An out-of-date estate plan may not achieve your parent’s wishes, or be declared invalid by the court, or may even have disastrous consequences. Having an estate planning attorney review the estate plan may save you money in the long run, not to mention the stress and worry created by an estate disaster. I generally recommend that an estate plan be reviewed every five (5) years.  If you need reasons, here are five to consider.

Reason #1: Financial institutions are wary of dated documents. Banks and other financial institutions look twice at documents that are not recent. Trying to use a Power of Attorney that was created twenty years ago is bound to create problems. One person tried to use a document, but the bank insisted on getting an affidavit from the attorney who prepared it to be certain it was valid. While the son was trying to solve this, his mother died, and the account had to be probated. A “fresh” power of attorney would have solved the problem.

Reason #2: State laws change. Things that seem small become burdensome in a hurry. For example, if someone wants to leave a variety of personal effects to many different people, each and every one of the people listed would need to be located and notified. Many states now allow a separate writing to dispose of personal items, making the process far easier. However, if the will is out of date, you may be stuck with a house-sized task.

Reason #3: Legal document language changes. The SECURE Act changed many aspects of estate planning, particularly with regard to retirement accounts. If your parents have retirement accounts that are payable to a trust, the trust language must be changed to comply with the law. Not having these updates in the estate plan could result in an increase in income taxes or costly fees to fix the situation.  Consider having your estate plan reviewed for this reason.

Reason #4: Estate tax laws change. In recent years, there have been many changes to federal tax laws. If your parents have not updated their estate plan within the last five years, they have missed many changes and many opportunities. It is likely that your parents’ assets have also changed over the years, and the documents need to reflect how the estate taxes will be paid. Are their assets titled so that there are enough funds in the estate or trust to cover the cost of any liability? Here’s another one—if all of the assets pass directly to beneficiaries via beneficiary designations, who is going to pay for the tax bills –and with what funds?

Reason #5: Older estate plans may contain wishes from decades ago. For one family, an old will led to a situation where a son did not inherit his father’s entire estate. His late sister’s children, who had been estranged from him for decades, received their mother’s share. If the father and son had reviewed the will earlier, a new will could have been created and signed that would have given the son what the father intended.

Bonus Reason #6: Older estate plans may contain provisions related to forced heirship laws in effect decades ago.  Some wills, even to this day, have provisions relating to giving a forced heir their “forced portion” under Louisiana law.  But forced heirship now only applies to heirs under the age of 24, or an heir of any age who has a physical or mental condition such that it MAY render them incapable of caring for themselves of their property. The terms may be different in your will, which can create problems.  Have your estate plan reviewed for provisions relating to forced heirship.

Bonus Reason #7: Some older wills may not provide for independent administration.  Louisiana adopted provisions relating to “independent administration” of estates in the early 2000s.  To this day, I come across Last Wills and Testaments that do not provide for independent administration, which can help streamline the probate process.  If you need your executor to sell your home after your death (and you don’t leave your home to one of your heirs), strongly consider changing your administration to independent administration, and having your estate plan reviewed for this reason.

Bonus Reason #8: Now may be a good time to start the process to qualify for Medicaid long term care benefits. It may be possible that when you created your estate plan years ago, you did not consider qualifying for Medicaid long term care, whereas today this might be more important, particularly if you have no (or little) long-term care insurance.  A Last Will and Testament will not get you qualified.  You will have to have more serious plan to achieve that goal.

These types of problems are seen routinely in my office. Take the time to get a proper review your or your parent’s estate plan, to prevent stress and unnecessary costs in the future.

Be sure to BOOK A CALL with me to talk about the plan, and to discuss any possible changes that you may need.

Reference: Forbes (May 25, 2021) “5 Reasons To Have Your Parents’ Estate Plan Reviewed”