Everyone should have an estate plan, whether it’s a simple will or a detailed and complex one with trusts and strategies for multiple generations. The more care and thought put into the plan, says a recent article, “5 Common Estate Planning Mistakes to Avoid” from Kiplinger, the better the outcome. There are some common mistakes you can avoid with a little foreknowledge.

Failing to plan for incapacity. People think about creating wills and trusts with their mortality in mind. However, incapacity planning is just as important, in some cases, more important, than death. A good estate plan identifies the people authorized to make important decisions on your behalf concerning finances, health care and other important issues. It also empowers them to do so with powers of attorney. Once you are unconscious or otherwise incapacitated, you can no longer legally assign someone else to act on your behalf. Preparing for others to make decisions for you should not be overlooked.

Neglecting funeral and burial wishes. If you were kind enough to purchase a burial plot and make funeral plans, don’t make your children have to conduct a scavenger hunt. Talk with them about it and tell them where they can find the deed to your plot and the contract with the funeral home. Name a point person who will be in charge of the funeral and burial arrangements and make sure they know your wishes. If you want to be cremated, make it clear to loved ones. The more information you share before your death, the more likely your wishes will be followed.

Not considering the tax implications of transferring property. Don’t leave your loved ones a huge tax bill. It may seem generous to gift property to heirs during your lifetime. However, in many instances, giving when you have passed will create a far smaller tax burden. If your estate planning attorney also understands taxes, he or she can work with you to determine how to minimize taxes and maximize your gifts.

Name back-ups for key decision makers. The unthinkable happens. Spouses perish in the same accidents. If no secondary beneficiary has been named, who inherits the estate? Name additional and alternative beneficiaries in case of unfortunate occurrences. You should name a backup executor, financial power of attorney and health care agent. If a person named in your estate documents cannot fulfill their role because of death, incapacity or other reason, the court will name substitutes.

Forgetting to clarify and update beneficiary designations. If your will says you want all of your children to get an equal share of your estate, but one child is on a joint investment account and another is on a Payable Upon Death checking account, you’ve created potential disputes. It’s important to list out the beneficiaries, their asset shares and create a directive to your bank to set the interests in your accounts upon your death. Your bank may require you to change how accounts are titled to achieve your goals. Therefore, you should take care of this while you are living, so you can make any needed changes.

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, “Top Five Estate Planning Mistakes” read also these additional articles: What Do You Need to Do When a Spouse Dies? and What If Estate Is Beneficiary of an IRA? and Will Making a Gift Conflict with Medicaid? and Does a Beneficiary have to Pay Taxes on 401(k)?

Reference: Kiplinger (Oct. 20, 2022) “5 Common Estate Planning Mistakes to Avoid”

Many people don’t know that their will doesn’t control who inherits all of their assets when they die. Some assets pass by beneficiary designation. Assets like life insurance, annuities and retirement accounts all pass by beneficiary designation.

Kiplinger’s recent article entitled “Beneficiary Designations: 5 Critical Mistakes to Avoid” lists five critical mistakes to avoid when dealing with your beneficiary designations:

1. Failing to designate any beneficiary at all. Many people forget to name a beneficiary for retirement accounts or life insurance. They may forget, didn’t know they had to, or just never got around to filling out the forms. If you don’t name a beneficiary for life insurance or retirement accounts, the company will apply its rules about where the assets will go after you die. For life insurance, the proceeds will typically be paid to your probate estate. For retirement benefits, if you’re married, your spouse will most likely receive the assets. However, if you’re unmarried, the retirement account will likely be paid to your probate estate, which can have negative asset protection ramifications.
2. Failing to consider special circumstances. Not every family member should get an asset directly. This includes minor children, those with specials needs and people who can’t manage assets or with creditor issues.  Unless you trust the parent(s) of the minor child, consider leaving that child’s share of the asset to a trust for the child and not to the child directly.
3. Misspelling a beneficiary’s name. Beneficiary designation forms can be filled out incorrectly and the beneficiary designation form may not be specific. People also change their names through marriage or divorce, or assumptions can be made about a person’s legal name that later prove incorrect. Failing to have names match exactly can cause delays in payouts, and in a worst-case scenario of two people with similar names, it can result in a court case.
4. Forgetting to update your beneficiaries. Your choice of beneficiary may likely change over time as circumstances change. Naming a beneficiary is part of an overall estate plan, and just as life changes, so should your estate plan. Beneficiary designations are an important part of that plan—make certain that they’re updated regularly.
5. Failing to review beneficiary choices with legal and financial advisers. How beneficiary designations should be completed is a component of an overall financial and estate plan. Involve your legal and financial advisers to determine what’s best for your circumstances. Note that beneficiary designations are designed to guarantee that you have the ultimate say over who will get your assets when you pass away. Taking the time to carefully (and correctly) choose your beneficiaries and then periodically reviewing those choices and making any necessary updates will allow you to remain in control of your money.

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, “What are Mistakes to Avoid with Beneficiary Designations?” read also these additional articles: Are Testamentary Trusts a Good Idea? and IRS Extends Time to File Portability Exemption Relief to Five Years and Can I Use a Special Needs Trust? and How to Plan in a Time of Uncertainty

Reference: Kiplinger (June 6, 2022) “Beneficiary Designations: 5 Critical Mistakes to Avoid”

Burial insurance—also called end-of-life insurance, final expense, or funeral insurance—is a whole life insurance policy that’s designed to pay for the costs of your burial. These costs may include a memorial service, cremation costs, a headstone for your grave or other expenses associated with end-of-life arrangements.

Bankrate’s recent article entitled “Burial insurance” explains that if you have your affairs in order, your family already knows what will happen when you die. You may have given instructions for how you’d like your body to be treated, as well as ideas for your memorial service or what you want written on a tombstone.

However, all of these things cost money. If you don’t want your family to be stuck paying those costs, you may want to consider a burial policy.

Because the payout for burial insurance is small compared to many regular life insurance policies, the premiums can also be quite affordable. The policies are easy to purchase and don’t require a medical exam. However, there may be a waiting period and the policy may offer only limited benefits in the first two years.

Burial insurance policies cover all the normal costs incurred by someone’s death, such as:

• Embalming
• A casket
• Flowers
• Cremation costs
• A burial plot
• The cost of transporting the body and/or remains
• A headstone; and
• Payment to clergy.

One type of burial policy, called a guaranteed issue life insurance policy, is available without any medical or health questions. It’s designed for those who are seriously ill and can’t get a policy any other way. Additionally, a burial policy is an exempt asset for purposes of Medicaid long term care.  In other words, the policy would not be counted as an “available resource” for Medicaid purposes.

If all the appropriate arrangements have been made, the process of filing a burial insurance claim should be fairly smooth.

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, “What Should I Know about Burial Insurance?” read also these additional articles: Does Potential IRS Change Have an Impact on Estate Plan? and Understanding the Issues of Elder Law and What are the Advantages of a Business Trust? and What Is the Best Asset Protection?

Reference: Bankrate (March 5, 2021) “Burial insurance”

If you’re married, unless there are very unusual circumstances, your spouse should be the beneficiary, especially if you live in a community property state like Louisiana.

A community property state is a state where any asset acquired during marriage is considered to be community property, which means it’s equally owned by each spouse. Any income that either spouse makes during the marriage is community income.

However, there are exceptions that permit spouses to own assets separately from each other. Gifts, inheritances and assets acquired before the marriage are all considered separate property.

There are only nine community property states, plus three states that allow residents to opt into community property law. The other 38 states plus Washington D.C. follow a common law property system where ownership of marital assets is more straightforward: whoever acquired the property owns it outright. However, a couple can choose to become joint owners, such as through a joint bank account.

If you’re now wondering which states are community property states, they are Louisiana, Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington and Wisconsin.

If you’re single, you might have a tougher time naming a life insurance beneficiary.

If you have minor children, ask a lawyer about naming a trust as beneficiary.  This is because a minor use of the proeperty will devolve to the other parent.  This can be often be problematic if you are not married, or the other parent of your child is estranged from you.  If a trust is the beneficiary of the policy, you can name a trusted family member as the trustee of the trust until you child reaches the appropriate age for distribution of assets from the trust.  The distribution can be made in “ages and stages”, over time, if you like.

If you have a disabled family member, consider a special needs trust (“SNT”).  A special needs trust (SNT) will allow the funds in the trust to be used for the disabled family member without kicking the disabled family member off of needs based programs.

If you don’t have a trust, you can name an adult family member or any other trusted person. However, remember that if you name an adult family member, once the proceeds are paid, those funds legally belong to that individual. Therefore, you better really trust that person and make certain that he or she understands that the funds need to be used for the intended minor child/children.

Finally, when making your decision, do so as if this account would be paid out tomorrow.

You should always consult with an estate planning 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 Pick a Life Insurance Beneficiary?” read also these additional articles: How Do Estate Plans and Trusts Work? and What Should I Know About Buying Funeral Services? and Medicaid’s “Snapshot” Date and Its Crucial Impact on a Couple’s Financial Picture and Claiming Social Security Benefits at Age 70

Reference: Cision (May 20, 2022) “How to Choose a Life Insurance Beneficiary”

The beneficiary designation will always supersede language of your will. Neglecting to know which assets have beneficiary designations and failing to update the designations can undo even the best estate plan.

The beneficiary designation for your life insurance, annuity, or retirement account custodian provides an opportunity to tell the company who is to receive life insurance proceeds, annuity, or retirement savings upon your death, explains a recent article titled “This Important Estate Planning Step is Often Missed” from Coeur d’Alene/Post Falls Press. If these are not coordinated with a last will and testament, the results are problematic at best, and worse, financially, and emotionally devastating.

This epic fail comes in many different forms, but the most common is when a life insurance policy has never been updated and an ex-spouse receives the policy proceeds. The rules differ between retirement accounts and life insurance and can be impacted by various state and federal laws (and the divorce decree, if the life insurance policy was included). However, for the most part, the ex will receive the proceeds and litigation will not succeed.  This is because the beneficiary designation is a contact between you and the insurance company or retirement custodian.  They are required by contract to pay to the person named in the beneficiary designation, and this is why such proceeds to not go through probate.

Occassionally, a person will die without having named a beneficary.  This most often occurs when a person named a spouse as beneficiary, but that spouse died and a contingent beneficiary was not named.  In such a case, the proceeds must by law be paid to the estate, and in this case the funds do go through probate.  This can be problematic for two reasons. First, life insurance and retirement accounts are “asset protected” under federal and/or state law.  However, if the funds go through probate, the creditors of the estate will have a chance to get the assets.

Example.  Bill has a life insurance policy.  He named his wife as beneficiary of the policy and did not name a contingent beneficiary.  His wife died last year and Bill has not updated the beneficiary designation. Bill dies in a car accident in which he was at fault.  Bill’s estate is liable to the “injured person” for damages and a personal injury attorney is hired by the “injured person” to extract as much wealth from Bill’s estate as possible.  Normally, if Bill had named a beneficiary, the life insurance proceeds would be go directly to the beneficiary and would be protected.  However, because Bill’s beneficiary designation lapsed (he did not have a beneficiary), the policy proceeds are payable to Bill’s estate, and the “injured person” can make a claim on the policy proceeds that are funneled through the estate.

Another common beneficiary designation mistake is when a person has created a living trust or revocable trust to prevent assets from going through probate when they die. Probate can take many months to complete and there are several strategies used to take assets out of the probate estate.

When the living trust is established and assets are transferred into the trust, those assets do not pass through probate.

However, if a person (or married couple) established a living trust and fails to list both primary and secondary beneficiaries for life insurance and/or retirement accounts, it is entirely possible that the assets will go through probate.  In such a case, the person should name the trust as the beneficiary of the policy.  This can protect the assets even if paid out to the trust depending on the asset protection features of the trust (for example, if the trust is an irrevocable trust).  If done incorrectly, payouts of life insurance policies can have a significant impact on Medicaid long-term care planning as well.

Take the time to make an inventory of all assets and accounts. Determine which ones have a beneficiary designation and find out who is named as the beneficiary. If your retirement accounts and life insurance policies were established decades ago, this is especially important.

Failing to coordinate beneficiary designations with your estate plan could undermine your wishes. Review these items with your estate planning attorney to avoid these and many other potential pitfalls.

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, “Why Is Beneficiary Designation Important?” read also these additional articles: Does Diabetes Increase Chances of Suffering from Dementia? and Protecting Your House from Medicaid Estate Recovery and How Do I Plan for Taxes after Death? and How to Find a Great Estate Planning Attorney

Reference: Coeur d’Alene/Post Falls Press (May 23, 2022) “This Important Estate Planning Step is Often Missed”

According to the Pew Research Center, the divorce rate has more than doubled for people over 50 since the 1990s. The Pandemic is also adding to the uptick, says AARP’s recent article entitled “Getting Divorced? It’s Time to Update Your Caregiving Plan.”

A divorce can be financially draining. Moreover, later-in-life divorces frequently impact women’s finances more than men’s. That is because in addition to depressed earnings from time spent out of the workforce raising children, women find themselves more financially vulnerable post-divorce and more likely to serve as caregivers again in the future. Even so, for partners of all genders, it is important to consider the longer-term financial outlook, not just the financial situation you’re in when you are actually dissolving the marriage.

You and your spouse will be dividing assets and liabilities and the responsibilities regarding spousal support. How one of you will live if the other gets sick or passes away should also be part of this conversation.

Consider where you’ll need to make changes. One may be removing your spouse from beneficiary designations on all your accounts. Your divorce agreement may also include buying life insurance or maintaining a trust or beneficiary designations for one another.

Create or update your estate plan immediately. You should also ask your estate planning attorney to review your marital agreement. They will have suggestions about how to align your estate plan with your divorce obligations. If you and your ex are co-parenting children, your estate plan should address who their guardians will be, if both biological parents pass away. It is also important to address who will manage any inheritance, if you don’t want your ex-spouse handling assets you may leave to your children.

Create your life care plan, which means naming health care proxies or surrogates (who will take care of your medical affairs, if you’re in need of caregiving), designating a financial power of attorney (who will take care of your finances and legal affairs), and naming a guardian for yourself if you’re incapacitated.

Consider the way in which your divorce will impact your children and extended family if you need caregiving. At a minimum, agree between yourselves what level of contact you can manage and, if you share children and loved ones, know that your lives will cross along the way.

If you have minor children under age eighteen (18) under your care – either children or grandchildren – when it comes to your assets to be inherited by these children, you should review with your attorey whether you will want your ex-sposue to manage the assets on behalf of these children.  If you don’t, it is important to establish a trust under which you name your own trustee to manage those assets (at least until the children are eighteen (18), if not even later).

While your marriage may not last, the connections will, so make a wise plan.

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, “Does ‘Gray Divorce’ Fit into Estate Planning?” read also these additional articles: What Do I Need to Do Right after Spouse Dies? and Can a Family Limited Liability Company Reduce Estate Taxes? and Should I have a Pour-Over Will? and How Do I Find a Great Elder Law Attorney?

Reference: AARP (Jan. 25, 2022) “Getting Divorced? It’s Time to Update Your Caregiving Plan”

Failing to have a succession plan is often the reason family businesses do not survive across the generations. Creating, designing and implementing a succession plan can protect the family’s legacy, according to the article “Planning for Success: How to Create a Suggestion Plan” from Westchester & Fairfield County Business Journals.

If you do not have a business succession plan, and you are the sole owner, your business could become worthless upon your death, resulting in your heirs getting nothing from the business.  Alternatively, if you are in a partnership or co-ownership with another business owner, your partner could continue operating the business, but your heirs could be locked out of distributions of profits from the business and locked out of decisionmaking.  Almost always, a proper business succession plan should be put into place.

Start by establishing a vision for the future of the business and the family. What are the goals for the founder’s retirement? Will the business need to be sold to fund their retirement? One of the big questions concerns cash flow—do the founders need the business to operate to provide ongoing financial support?

Next, lay the groundwork regarding next generation management and the personal and professional goals of the various family members.

Several options for a successful exit so that your business will not die when you die plan include:

• Family succession—Transferring the business to family members
• Internal succession—Selling or transferring the business to one or more key employees or co-workers or selling the company to employees using an Employee Stock Ownership Plan (ESOP)
• External succession—Selling the business to an outside third party, engaging in an Initial Public Offering (IPO), a strategic merger or investment by an outside party.

Once a succession exit path is selected, the family needs to identify successors and identify active and non-active roles and responsibilities for family members. Decisions need to be made about how to manage the company going forward.

The options listed can be financed in one or a few of these ways: (1) outright payment of cash; (2) the purchase of a life insurance policy on key members or owners; (3) through a seller-financed arrangement (whereby the buyer makes payments over time with the seller securing the business and the assets of the business, much in the way a bank will secure the purchase of a home); and (4) a bank or SBA financed arrangment (whereby the seller gets cash at closing and the buyer pays the bank/SBA over time).  Any agreement that you have with a partner should be set forth in a binding “Buy-Sell Agreement”, which can be a stand alone agreement amongst the partners, or a buy-sell provision in your company Operating Agreement.

Tax planning should be a part of the succession plan, which needs to be aligned with the founding member’s estate plan. How the business is structured and how it is to be transferred could either save the family from an onerous tax burden or generate a tax liability so large, as to shut the company down.  The sale could be structured as an “asset sale” whereby each individual asset of the business is purchased in total, or an “entity sale” whereby the entity itself (for example, the LLC or corporation) is sold.  If  your company is categorized as a “c corporation” or an “s corporation” for tax purposes, the sale can be structured as an “entity sale” for state law purposes, but there is still the option of categorizing the sale as an asset sale for tax purposes under Section 338 of the Internal Revenue Code.  The bottom line is that you don’t want to create any extra taxes due to the sale, including “depreciation recapture”, and you should know your after tax rate of return (including how much of the sales price will be categorized as  “return of capital”, “capital gains” and “ordinary income”).  The installment sales method may be a good way of delaying recognition of the gains from the sale over time and avoiding taxes due to tax bracket jump.

Many owners are busy with the day-to-day operations of the business and neglect to do any succession planning. Alternatively, a hastily created plan skipping goal setting or ignoring professional advice occurs. The results are bad either way: losing control over a business, having to sell the business for less than its true value or being subject to excessive taxes.

Every privately held, family-owned business should have a plan in place to establish what will happen if the owners die or become incapacitated.

An estate planning attorney who has experience working with business owners will be able to guide the creation of a succession plan and ensure that it works to complement the owner’s estate plan. With the right guidance, the business owner can work with their team of professional advisors to ensure that the business continues over the generations.

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, “Will Your Business Die When You Die?” read also these additional articles: Medicare’s Coverage of New Controversial and Expensive Alzheimer’s Drug Is Limited and What Estate Planning Documents are Used to Plan for Incapacity? and Special Needs Planning and What Needs to Be Reviewed in Estate Plan? an

Reference: Westchester & Fairfield County Business Journals (March 31, 2022) “Planning for Success: How to Create a Suggestion Plan”

The loss of a spouse is an extremely stressful event. It comes with many emotions that can be overwhelming for the bereaved.

Hopefully, life insurance is one thing that was put in place to allow those remaining to process their loss without fretting over their finances, says Kiplinger’s recent article entitled “What Is the Best Way for a Widow to Use Life Insurance Proceeds?”

Life insurance death benefits can be paid within 30 days after you submit a claim. To do this, you need a certified death certificate, which in Louisiana is generally issued in a couple of weeks by the funeral home. You should also order plenty of copies (about 15) for closing accounts.

The best use of the money is different for each widow or widower and their unique situation.

Funeral Costs. Use life insurance money to cover these costs to decrease your financial strain.

Ongoing Expenses. When your spouse dies, living expenses do not stop. Your income is frequently reduced. In fact, after the death of a spouse, household income generally declines by about 40% due to changes in Social Security benefits, spouse’s retirement income and earnings. The death benefit from a life insurance policy can help provide the funds you need to help cover your mortgage, car payment, utilities, food, clothing and health care premiums.

Debts. You are generally not personally responsible for paying off the debts of your deceased spouse, provided they are in the deceased spouse’s name alone. However, debts entered into during the marriage are regarded as “community obligations” or “community debts”.  When an estate does not have enough funds to pay all the debts, any gifts that were supposed to be paid out to beneficiaries will most likely be reduced. Note that you may be responsible for certain types of debt, such as community debts or debt that is jointly owned or a loan that you have co-signed. Talk to an experienced elder law attorney to understand Louisiana’s laws so that you know where you stand concerning all debts.

Create an Emergency Fund. Life insurance can help build a liquid emergency fund, which should cover three to six months of expenses.

Supplement Your Retirement. When a woman loses her spouse, she becomes much more vulnerable to poverty. To retire, a person typically needs 80% of their preretirement income to live comfortably.

Education. If you are a young widow, the life insurance proceeds can be used to pay for going back to school to augment your earning abilities. These funds could also cover the cost of college for your children. However, you should only save for college educational costs after your retirement savings are secure.

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 Use Deceased Spouse’s Life Insurance?” read also these additional articles: Is there a Connection between Vitamin Deficiency and Dementia? and What Does ‘Community Property’ Mean? and Can My Ex Get Some of My Estate?  and Will Eating More Fish Help Me Stay Healthy?

Reference: Kiplinger (Dec. 17, 2021) “What Is the Best Way for a Widow to Use Life Insurance Proceeds?”

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”