B (3:35)

So that's usually what most people refer to around.

C (3:39)

Okay. And then instead of probate, this is

B (3:42)

the most confusing one. Succession. We call it a succession here. Everybody's seen succession on hbs, so they totally are confused. It's not at all like that. It's just what we call probate.

C (3:53)

And then instead of guardian for a child.

B (3:55)

Sure. We call those people a tutor, which nobody in Louisiana even knows unless they're a lawyer. I feel like.

C (4:01)

Okay, okay. So not. Not a math tutor. Although they might be good at math.

B (4:06)

Yes.

C (4:08)

And then instead of a life estate, you say.

B (4:11)

Right. We have this weird term called the usufruct. And so we're gonna, hopefully we're gonna talk about that later. But it's, it's a little bit, A little different.

C (4:20)

Yeah. And I know it's not totally one to one with a life estate, but we'll, we'll dive into that. So one of the first things that we mention when people ask, like, even internally at wealth, like, how is Louisiana different? We say, like, forced airship. That is different. So in the rest of the country, in general, you can choose to completely disin inherit your child and give them $0. Is that true in Louisiana?

B (4:48)

The lawyer answers, it depends. But in general, we have like this concept called forced heirship. So, you know, it goes back to our civil law, Napoleonic code, all that stuff you hear about when you think of Louisiana law. But it's been reformed, so it doesn't apply to all children. It's only children who are either under the age of 24 or any child, regardless of age, if they are permanently incapable of taking care of themselves. And that definition can be very broad. So there's lots of nuances that can come into that.

C (5:17)

Okay. And so how much, if you do, if somebody does have a forced heir, like, what does that mean for. For their estate and how much they can. Or how much they have to give that forced heir?

B (5:29)

Right. So if you have one forced heir, you're required to give them 25% of your estate. If you have more than one forced heir it's 50%, but then divided by the number of children. So if you have two, it'd be 25 each. If you have three, I went to law school, not math, but you get, you kind of get the picture. So that, that 50% is divided amongst the number of children that they have.

C (5:51)

Okay. And so I know like, it's pretty rare that somebody would want to completely disinherit their child. Although it does come up. If somebody does want to disinherit their child and they do fall within that definition of forced heir ship or they think they do, are there options like to disinherit a child?

B (6:11)

Yeah, there's a statute, you know, what we call our laws around here that directly addresses the circumstances where you can disinherit a child. Probably the one that we see the most often, I think for kids under the age of 24, it's pretty hard. But for adult children, refusal to talk to a parent for two years despite knowing how to do so is like a big one. I mean, this is going to sound crazy, but attempting to murder your parent is grounds for, you know, disinheritin, which would seem obvious. So there are ways to disinherit a child. But the, I think the biggest thing to kind of remember about forced heirship is, you know, for minor children. As a parent myself, not many people want, let's say 8 year old to get 25% of their estate outright. And so to put it into trust or a different form, you kind of have to jump through all these hoops. So that's where even though, you know, I think most people are like, oh, that's a great concept, you take care of your kids, but it can kind of lead to some, some different results than you might think. So.

C (7:10)

Right. And I think about this too because I think the idea that a lot of at least traditional families have is like, oh, I want everything to go to my spouse and then after my spouse is, has passed away, then everything goes the kids to the kids. But they like want their spouse to be cared for and they think that just like the default laws of their state is, are going to take care of that. And that's not necessarily the case.

B (7:34)

No, that's exactly right. And in Louisiana, you know, in particular, you know, whether whether property automatically goes to their spouse depends on whether it's community property or separate property, which most people don't think of. You know, we're a community property state. Most people, at least that I deal with, don't have prenups, don't have Any marital agreements. So they think, like, okay, it's our house. Like, when I die, it goes to my husband. But we. That is absolutely not the way it works here. So, you know, you can think of it as. As when you. When you die, you know, my husband will get 1. His 1/2 interest of the house, but I can give my 1/2 interest to whoever I want. And so people. You just think it's like, joint tenants with rights of survivorship, and it's not.

C (8:13)

Yeah. And that's actually, like, even though it's a difference in a lot of states, I think Ann and I can probably, like, relate to that at some level because we both have practiced in community property states, me in Washington and her in California. But I do think people have that expectation even. Especially if they have, like, some awareness of what community property is, but maybe not full understanding. You know, I feel like that's a logical assumption or, like, conclusion to draw when you hear like, oh, community property, what's yours is mine, what's yours.

B (8:46)

Right, Exactly. Exactly. Yeah.

A (8:50)

Yeah. I think for me, what was so interesting when we were releasing the will workflow@wealth.com and why Louisiana ended up being so different from some of the other states is this idea of, like, disinheriting your kids. You think, oh, that's only really relevant once my spouse has passed away.

C (9:07)

Right.

A (9:07)

Like, oh, you know, maybe that's when somebody's considering, like, disinheriting. But what you have to realize in Louisiana is. No, no, no. At your own death, in that first level of, like, passing the assets by giving everything to your spouse, you are effectively legally disinheriting your kids at that step, which is kind of, like, weird. Like, you know, and so all of a sudden, even the structure of our documents had to change to accommodate that. And, Addie, I was wondering if you could talk a little bit about, like, you know, Elena mentioned some people, most people don't think it's a good idea to get 50% of your estate split amongst, like, your two or three children who are minors.

B (9:47)

Right.

A (9:47)

And so what do you do if you want to override that, like, you know, disinheritance of your kids and put more assets in the hands of your spouse. Like, what's the mechanism there?

B (9:59)

Yeah, that's a great question. So there's two ways that we do this. Two ways the law allows us to do this. So the first is to use a usufruct. And we've kind of already mentioned that term before. It's similar to a life estate. It gives the person, you know, the person who receives the use of fruct, we call them the use of fructuary. And they have the right to use the property and the right to derive the income from the property. So, you know, if you think of like, if you're familiar with life estates, that's generally what you think of. So we can, we can give their surviving spouse that use a frock, that ability to use the property, and then the children are the naked owners. That's just what we call the remaindermen here. So the property kind of automatically goes to them that way. Now, to kind of throw another nuance onto it, if you think like, I have minor children, what if some. What if I die and then something happens to my husband and the kids are still minors, I probably still don't want them to get it. So what we'll typically do is create the use of our structure, but then put the naked ownership interest in a trust so that if something does happen, the trust is there to automatically like, step in and say, you know, here's where we're going to make distributions, here's when we're going to terminate, who's going to be oversee that trust. And so, you know, sometimes I say estate planning in Louisiana is like, you know, estate planning with one hand behind your back because you're going to have to jump through all these hoops eventually. I think we get to a lot of the same answers as in other states, but you kind of have to work through the statutes to get there.

C (11:24)

That's a really good point. And that's actually like, that's the route we ended up taking with our wealth.com documents because we, you know, always in other states, we give users the ability to decide whether or not they want their child's share to go into trust. But adding on this layer of like the use of proct and having that testamentary trust come into play at the first death, if forced death, sorry, forced heirship is potentially applicable, that can, you know, it just kind of changed how we thought about things and just, we couldn't just, you know, copy and paste from other states because there was a little bit of like, reworking and how we all like, tend to think about that in the process of estate planning. So it's, it's really interesting and I know I laugh at the naked ownership comment. Comment because our paralegal thinks it's the funniest thing that they. It's called naked ownership.

B (12:23)

I have no clue why it's called that. It's so everybody is like, what are you talking about? You know, the term naked. And they're like, what? So,

A (12:32)

so in other words, if you read a Louisiana will or, you know, I guess a trust, and you see all of this really weird language because you yourself, as an advisor, are not used to having clients based out of Louisiana. It's actually a hallmark that the document is a higher quality one because it's trying to be respondent to, you know, this weird dictionary being used in Louisiana.

B (12:56)

Yeah.

A (12:56)

And so don't be put off by. By the term naked. Ogre is the bottom line.

B (13:00)

Absolutely.

C (13:04)

That actually leads to another question I. I had. And I know, like, we've talked about this a little bit in the past, Addie, but I was wondering, like, how much this actually comes up in practice when this isn't accounted for in someone's documents. I mean, I think about, like, in my family, if everything went to my mom, I wouldn't bat an eye because, you know, like, I think that's the expectation of a lot of kids too, like that their, their parent in a traditional family is going to have access to those dol. But, like, are there disputes over forced airship?

B (13:36)

I mean, most definitely. There are definitely disputes. And one thing to kind of keep in mind is in Louisiana, use of fraud is not just over real estate. So you can have a use of fraud over bank accounts, over, you know, financial accounts, a car, like anything, any property. You can have a use of rocktober. And so if you don't actually have a will in Louisiana, the default is the surviving spouse gets a use of frock. The difference between, one big difference between a use of arct and a life estate is that it can be for a set term. So the intestate law say the use of our class lasts until remarriage or until death, the earlier of them. So it could actually terminate before the spouse dies. So anyway, to get back to your original point, I think the way most of the time we see the forced heirship issue come up is maybe a blended family situation. So surviving spouse is not the parent of the children. You know, they didn't get what they thought they were going to get or not as much. And the kind of. The interesting thing is we said that, you know, children under the age of 24, automatically forced years, like that's very easy when's their birthday. But for the other kind of prong of the statute, as you will, the statute says that if they have an incurable disease that may later render them incapable of taking care of their person, they can also qualify as a forced air. So you can imagine, like, people. I've seen people claim diabetes as, you know, being the forced air, they may eventually be rendered, you know, incapable of taking care of themselves. And so, I mean, depression, like, just. There's lots of things that can come up. So I think that's particularly when we see it. And because the statute is so broad and could doesn't give a lot of guidance, you know, the courts are still just always interpreting it. So it's, you know, rather interesting in that sense.

C (15:26)

Yeah. One more thing about how I know that there's probably a lot we could talk about with use of rocks, but one question I do anticipate that people would have is like a use of practice, kind of an informal trust in a way. Right, that's exactly how I think of it. Like you said, the spouse has the right to the income and they. And they like, have the right to, if it is real estate, live in the house that you don't have the right to sell in the house. So, like, what does that mean practically? Like, if somebody wants to move, do they have to ask their kids permission? Like, what does it mean if a spouse, like, uses up the whole bank account, you know, to like, care for themselves, which might have been the intent of the deceased? How does that all kind of shake out?

B (16:14)

Yeah, great question. So I think it depends on the type of use of rock. So sometimes for the wills that I'll write, sometimes you can give a use of rec that allows a person, we call it the right to convert the property non consumables to something else. So they can sell the property, they could sell a house, and then whatever proceeds the use of rec attaches to that. So a lot of times, like in a lot of documents, you'll see, you know, essentially to give the surviving spouse the right to sell the property. Now, if we're talking about the legal use of fraud that comes under the inheritance law, then they don't have that right to sell the property. And then they need the naked owners, the kids, to sign off on it. In most families, that's not a big deal. But as you can imagine, in some families there are some money that has to be transferred in order for that, you know, sign off to occur. So, you know, kind of depends on. On where. Where the family is on in that situation. And then I know you had another question that I wanted to answer, and I can't quite remember what it was.

C (17:13)

Yeah. So if it is a consumable, say they like, have. They have a right to Sell the house. And, and that's something that we did grant in our wealth.com do. Like when a spouse is given a use of rock, they have the right to convert to avoid situations like that. But if they do sell the house or if the use of fruct is granted over just a bank account or stocks or something else and they use it up, what does that mean for the naked owners?

B (17:39)

Yeah, so that's a great, that is a great question. Essentially, when we think of a use of frock of a consumable like a bank account, the. Under the law, technically what they should do is open two accounts. They should put sort of the principal in one account and sweep the income over. Because the use of rectuary at the end of the use for has a obligation to account to the naked owner for the money they received. Now as a practical matter, do people do that? Absolutely not. And there is really no way for the naked owner to tell them to do that. So essentially the naked owner has become an unclaimed creditor of the surviving spouse's estate. Right. And that's usually what I tell people like, you know, this is, this is how we need, we should do it now whether they, they, they do it the way I say, you know, flip a coin. But at the end of the day, the naked owners don't have a lot of recourse. I mean, you know, if the surviving spouse had real estate or whatever they would have the claim on. You know, like they, they're, they're an unsecured creditor of the estate, essentially. So if they use up everything, you know, sometimes it is, there's just nothing there to go get it. Wow. Yeah. Crazy.

C (18:46)

Very informal. Which is fine. There are no issues.

B (18:51)

Yeah. And I mean, so I think your, your comment, like an informal trust is just a great way to like, for. That's the greatest way I think about it, because that's what it is. I mean, we're kind of separating ownership. We're saying who can do what? You know, the law tells us the rights of the use of fractuary and the naked owner. But at the end of the day, it is very less formal than a trust. You know, a trust gives much more structure around that. And I think for a lot of people, like exactly what you said, they really do want the surviving spouse to use up the proceeds and not have to account and just whatever is left good of the kids. And so when, you know, I mean, the way to do that is a trust is a testamentary trust. And so usually I will try and convince them to do that. But, you know, they see trust and they get scared and it doesn't always work. So.

C (19:34)

Yeah. Yeah. Okay. Well, speaking of trust, that leads to my next question. I feel like just like the will versus trust question it already. It does vary by jurisdiction. I practiced in Washington. Jumping to a revocable trust was like, definitely not the default that it can be in other states that have, you know, a particularly expensive probate process. But what does that look like in Louisiana?

B (20:02)

Yeah, I think we're kind of the same. So the default rule here is not automatically a revocable trust. We don't have a terrible probate process. So, you know, when people kind of come to me generally, my advice is that a last will and testament, you know, is usually where we start. Now, if there's circumstances where that doesn't work, and there certainly are, then a trust kind of comes into play. But, you know, I get a lot of. I saw on YouTube or this TikTok video said I need a trust. And so when people tell me that, I'm like, okay, well, why, you know, what are your assets? Why do you think you need it? Like, let's talk about specifically what it's going to do and what it's not going to do do. And I still think people have the misconception that once you put stuff on a trust, like, it's just tax free. And so, you know, like explaining to them that a revocable trust really doesn't provide asset protection or, you know, doesn't protect you from actually, you know, it's. It's sort of interesting.

A (20:55)

So Nadia will tell you, part of the impetus of this podcast is to demystify a lot of the things people are hearing on TikTok and other social media sources. Thumbs up for it. And I encourage our audience to check out earlier episodes of this podcast where we say there is no income or estate tax planning objective being fulfilled by a revocable or living trust.

B (21:24)

Over and over. Maybe they'll. They'll get it.

C (21:29)

Yes. And for, like, our wealth.com documents, like, for that reason, we were like, we already know that we're going to have to deal with a lot of the complexities of, like, Louisiana law in general with dealing with our testamentary trusts within our. Our last will and testaments. So we went the will route and, and, but just to like, talk about that, we still did have to think about Louisiana law in terms of trusts and how it differs from other states. And one of the things that, like, popped out to me when we started talking about it was just like overall the flexibility is, is much more limited. And I was wondering if you could expand on that a little bit.

B (22:08)

Yeah, absolutely. So one of the biggest things I think in terms of flexibility is in Louisiana, you know, we kind of divide our beneficiaries between an income beneficiary and a principal beneficiary. And I kind of think of it as like the principal beneficiary is king. Like they are the anchor of the trust. So it's very hard. It's not impossible and there are certain, certain circumstances. But once you name those principal beneficiaries, that that's ultimately who's either getting or estate is getting the money. Now, you know, one thing that we don't have is that to be named a beneficiary of a Louisiana trust, generally you have to be in being. And so you can't have these super long just, you know, descendants of forever and ever. Like we don't have dynasty trust. You know, when people are like, I want a dynasty trust. You know, I want multi generations. You know, first off, I'm like, well, do we A, do we really need that? But B, if you do, the Louisiana jurisdiction is just not going to accomplish your goals. You know, it's just at most three generations is about all we can get if we use a class trust. But that's really about as far as we can go. Yeah.

C (23:14)

And I know that that was like something that we were, when you were helping me review the documents, that was something that we were like taking a look at our, @our wealth.com documents, making sure that we like have a clearly defined principal benef Beneficiaries. Because that's just not what our forms look like for different states that like identification of income and principal and having that be set. Because even that, even if you have, you know, my descendants then living that can run foul of the Louisiana law.

B (23:45)

Exactly. And then another thing that, you know, we have no powers of appointment. So after I graduated from LSU Law School, I got my LLM at Boston University. I get into like, you know, estate tax class class. And people are talking about powers of appointment and I have no clue what they're talking about. Like, I'm just like, you know, what, what is this thing? Like, please explain. And so I think people probably think that's hilarious because like that is one of the, the most used techniques of estate planning everywhere else and we just have no ability to do it here. So. So that's very different.

A (24:15)

Yeah. If you go to a hackerling session I wonder how many sessions do not

B (24:19)

mention the power of appointments.

A (24:21)

Zero.

B (24:21)

Probably zero. So. So that's. You know, there are definitely. I remember I had to go buy a little trust book because I was like, I just. I don't understand. This is so different. So, you know, it's. It's. It's good, though.

C (24:38)

I'm trying to think of what else we want. Okay, so this was one thing. And actually mentioning our paralegal again, I kept. When we were working on this Louisiana project, I kept saying, like, oh, Louisiana law is different. Louisiana law is different. And she was like, elena, you need to stop saying that. Because people in Louisiana, Anna, don't see themselves as different. It's just their lives. And she's right. I'm sure she's right to some extent. But I was wondering, like, what level of knowledge and awareness the clients you see come into your office with this, or, like, how much you need to explain these concepts to them. Like, are you starting from scratch? Or is there some baseline level of awareness?

B (25:19)

You know, That's a great question. I mean, even I'd say, like, when I went into law school, I didn't realize anything about forced airship or, you know, I knew we had community property. So I think for most people that come in, if they haven't been involved in, like, a succession of their parent or grandparent, they really don't have a lot of experience with it. And so it is just kind of educated, you know, kind of starting at the beginning and explaining how the rules work and how, you know, how we can, I don't say get around the rules, how we can use the rules to do what they need to do. But it's definitely a lot of education. Ongoing education.

A (25:55)

Yeah.

C (25:55)

Which makes sense, because I think that that's true in any absolute. Like, people you see on tv, like we were talking about, it looks like this, like, grand thing. And then actually, it's just a lot of paperwork.

B (26:10)

And the reading of the will, that's my favorite. They're like, when I'm gonna read the will, I'm like, I've never read a will in real life. You know, so it's not like you see on TV so many novels.

C (26:19)

Like, the inheritance is conditional on something crazy that, you know, would never actually be enforced. So I always laugh at that if I'm reading my Chiplet novel. Novels.

B (26:32)

Yeah.

C (26:35)

But I think we've covered a lot. But I think, just in general, are there any other misconceptions about Louisiana estate planning or just estate planning in general that you see come up in practice that you feel like we should debunk a little bit.

B (26:51)

Yeah. So I think we got the most of the big ones, I think. And you've kind of already mentioned this. I think, you know, most people just leave everything to. I'll leave everything to my spouse, and they, they'll take care of the kids. And so, you know, I do always caution people like, you know, in Louisiana, there is no ability to, you know, once you give it to somebody, there's no condition. You know, they, they get it. It's outright ownership. They can do what they want with it. Grief, like second spouses, you never know. So I think that's a big one that people don't often realize. And then I think it's also, you know, the. Another one I, I hear a lot is I don't. I don't have, you know, my state's small, so, like, I don't need estate planning. And so I think in that sense, it's trying to let people know that estate planning is more than just a will. I mean, particularly for some people, I think powers of attorney are just as important, if not more important than a will. You know, I always tell people, you have an estate plan. The state of Louisiana has an estate plan for you. You may not like it, but you got one now, a power of attorney. You know, I mean, the, you know, the tutorship, curatorship process, the interdiction, like, nobody really wants to go through that if they don't have to. And so having those powers of attorney in place are like, really? So that's probably, I think, the big one. Yeah.

C (27:57)

And I think you just threw out like, a few more.

B (27:59)

Like, I know. I was like, exactly. Well, that one's easy because I, I use a Britney Spears conservative. I'm like, it's like when Britney Spears had a conservative. That's what I'm talking about. And people are like, okay, so I have an analogy.

C (28:12)

But, yeah, oh, that's perfect. And such a good point, because I think that's something I like to say too. Like, everybody does have an estate plan. You just don't know what it is because it's written in a statute somewhere and you might think it operates a certain way. But even intestacy laws of other states might not work how you expect them to, depending on your family structure, if you're on a community property state. So it's always best to just go through the process, even just have all of your family on the same page. And, like, make sure you all understand if you choose to share that process with your children. I know people differ on that, but in my experience, it can make everybody's lives a lot easier and stress free when the time comes to actually like execute those plans.

B (29:00)

So. Yeah, totally agree. Totally agree.

A (29:05)

All right, so what I am hearing in this episode is if you are an advisor who has a client in Louisiana, be careful. You know, make sure that they have an estate plan. Because not only is it that there are legislature legislatures out there that have made a default estate plan for your client, but in Louisiana specifically there's also a French flavor to it. And really your client may be surprised or their loved ones if they pass away without an estate plan. And there are ways to work around some of these more rigid rules in Louisiana as well. And so with that, I wanted to close out our episode. Addie, Elena, thank you so so much for joining the Practical Planner. We'd love to welcome either of you back. And with that, you know, for audience, if you would like more of this content, please, you know, rate subscribe and we will see you in a different episode.

C (30:19)

Sam.