Here is an obvious truism: no one likes to contemplate their own death, or even incapacitation. However, avoiding the subject can have serious consequences for those closest to you.
“Assuming that nothing bad will ever happen to you is not a good strategy,” stated Max Ciolino, founder and Partner of the Ciolino and Onstott Law Firm. “It’s never too early to begin your estate planning.”
Ciolino and Onstott specialize in successions, probate and estate planning, as well as property law. While the subject may be emotionally fraught, its inevitability demands attention.
“Estate planning is simply preparing for incapacity and death,” Ciolino explained. “Probate means that a will exists. Succession is the process of transferring property to heirs.”
For succession to occur promptly and without the infighting that creates an unfortunate number of family feuds, a will is imperative. Creating such a document is not difficult or costly, but it has to be done right.
“The only thing worse than not doing a will is doing it wrong,” Ciolino observed. “The biggest horror stories come from doing it incorrectly. Work with an attorney you trust and who has the relevant experience.”
Some examples of what can go wrong include not having the will properly notarized and filed, which can render it invalid. Also, many people do not understand survivor benefits that their heirs may be entitled to, and if the request for those benefits is not properly made, they can be lost.
The transferring of land is another frequently problematic situation. “When land passes from one generation to another without the proper procedures, things can get really tangled and messy in a hurry,” Ciolino noted. “If you inherit property, get everything checked and organized promptly.”
While every adult really needs to have a will, Ciolino stressed two particular circumstances that should lead people to take this step. The first is starting a family, because it is vital to ensure that children are protected and cared for upon the death of their parents.
The second trigger is when one begins to accumulate wealth or acquire property. And most certainly, if one reaches 50 years of age without addressing estate planning, the urgency increases.
“By this point, the children are probably out of the house,” Ciolino commented. “Most people have considerable assets and acquisitions. And you have to start thinking about end-of-life decisions.”
This leads to the other important part of the equation: preparing for potential incapacitation before death.
“Some documents are important during your lifetime, like creating a Power of Attorney,” explained Ciolino. “You also need a living will, a medical Power of Attorney, a HYPPA release.
“This kind of preparation is even more important for people in a committed relationship but who are not actually married,” he added. “People don’t understand the limitation of rights and decision-making, which under the law generally defaults to parents or siblings.”
Setting up trusts is another aspect of all this.
“Trusts are vital if you are leaving property to minor children or someone with a disability,” Ciolino elaborated, “or if you have a business that you want managed in a certain way after you pass on. Trusts can protect your assets and your family, but they have to be done carefully. They can create complications in some situations.”
On the property law side of the practice, the firm helps resolve disputes between neighbors, breaches in buy and sell agreements, and the same kind of property ownership issues that can result from problematic succession situations. They also work with clients on land use issues such as zoning and conditional uses.
While these types of issues are mostly local and can be considered settled once a resolution has been achieved, Louisiana law – being different than the laws of virtually every other state – can have impacts, and are even more likely to come into play if succession is involved. Families spread out across several states may find that advice received from attorneys in other places is not relevant here.
“Living and irrevocable trusts are a good example of this,” Ciolino said. “We sometimes have to undo the education they received elsewhere and walk them through how to do things here.”
Louisiana laws themselves can change, and of course, people’s life circumstance change routinely. Hence Ciolino recommends reviewing one’s estate plan every three to five years, to make sure it is solid legally and continues to reflect the individual’s assets, priorities and wishes.
Like it or not, estate planning is simply essential for everyone.
“People avoid estate planning and succession because of the emotions and because they are concerned about the cost, but once they take that first step, they might find out it’s not so scary, it’s relatively quick, and it’s relatively inexpensive,” Ciolino stated. “Protecting your property and assets is usually less challenging and causes less anxiety than not doing it.”
