Amid COVID-19 pandemic, Blacks encouraged to estate plan
23rd June 2020 · 0 Comments
By Ryan Whirty
Contributing Writer
With the COVID-19 virus claiming lives by the thousands across the country and in Louisiana, local attorneys and experts say the need for a will could be heightened, especially for Black residents, other people of color and similarly vulnerable populations that are dying at alarmingly high rates.
“If you have no will, you can’t control where your assets go when you die,” said New Orleans attorney April Davenport. “With blended families, your assets might not go to who you want them to go to, or think they will go to.” Davenport formerly worked as a law clerk with the Orleans Parish Civil District Court, where she worked with a variety of succession and inheritance cases.
James Oliver, a New Orleans attorney who specializes partially in wills and successions, echoed Davenport’s thoughts on the necessities of after-death planning. He said the pandemic only heightens such urgency.
“I think it is more important than anyone wants to admit,” Oliver said. “It can be difficult to sit down and think about this world without you in it [and] hard for a healthy person to even consider needing someone to act on their behalf or make medical decisions for them. COVID-19 and the current pandemic have led a lot more to consider these things and try to, as they say, ‘get their affairs in order.’ Specifically, medical power of attorney, living will and financial power of attorney.”
Kelly Ponder, the communications director for the Louisiana State Bar Association, said that statistics on how much of the Louisiana or New Orleans populations have wills and legal plans in place are scarce, including how those percentages break down demographically, including by race.
Following a quick, informal survey of LSBA member attorneys, Ponder said some association members “indicated that they really have not seen an uptick in need for these services.” However, some of the Louisiana legal service corporations with whom the LSBA works did say that shortly after the onset of the coronavirus pandemic, some of the corporations received a rush of calls from people worried about wills and succession plans. Ponder said that the attorneys advised the anxious people in what might be involved in drafting and executing wills.
“[Some of the corporations] told us that within the first few weeks, some of them began getting calls asking for help doing wills because they were worried they may die from COVID-19,” Ponder said. “They have also had a lot of calls from people whose family members died as a result of COVID seeking legal help with successions,” she added. “They walked some clients through how to do an olographic will and drafted some documents for clients to take to local notaries.”
Olographic wills are ones written, dated and signed entirely in the handwriting of the testator.
While statistics specific to Louisiana and New Orleans were unavailable, a 2016 Gallup national poll found that while only 44 percent of all adult Americans didn’t have a will, even less people of color had wills – at only 28 percent. Fifty-one percent of white Americans have wills, Gallup found.
Not surprisingly, there were likewise discrepancies within other demographics of vulnerable populations. Americans with an annual household income of less than $30,000 possessed wills at a rate of only 31 percent, compared to 38 percent for household incomes between $30,000-$74,999, and 55 percent for households making $75,000 or more per year. Education level was also a key factor. While 61 percent of Americans with a postgraduate education had wills, the percentages slowly decreased with lower education levels – people with a high school education or less had succession plans at just a 32-percent rate.
Overall, the percentages for every demographic across the board had fallen since 2005, when a similar poll was conducted.
Oliver said that at the minimum, people should get at least a will down on paper, whether it be handwritten at home or undertaken with a top-notch attorney. He added that Louisiana has specific laws regarding things like forced heirs, and the frequent prioritization of descendants over spouses adds further stress.
“I say get a will at minimum so that you can play by your rules,” he said. “A will does not allow you to trump forced-heir rules, but it will allow you to determine most of your estate choices and not force your estate to follow Louisiana rules for persons without a will. Don’t just assume you know the house rules, when you can tell them how you want to play.”
In terms of wills, Davenport added that if someone dies without a will or succession plan – a situation called intestate – the fate of his or her financial capital, property and other assets falls into the legal system, which distributes intestate assets according to established laws. That could mean that some wealth is inherited by someone the deceased might not have to get those assets.
“If there is no will, then law dictates where it goes,” she said. “All assets go to a hierarchy of your family. If [the deceased was] married, half of the property, called community property, belongs to the surviving spouse, and the other half goes to the deceased person’s children.
Successions also factor in, adding yet another complexity.
“If there are assets to be acquired and owned,” Davenport said, “you will have to open a succession, whether you have a will or not. In order to actually own the property that was passed to you either by a will or by application of the law if there was not a will, you will need to open succession to get ownership.”
However, many forms of debt are also passed down, meaning a surviving loved one is now saddled with that debt regardless of his or her inability to pay. That could send creditors hounding survivors.
“You will need to know about debts,” Davenport said. “Depending on the debt, some creditors can hop into the succession. With other debt, like mortgages, once the heirs are put into possession, the mortgage company can go after the heirs.”
Davenport outlined an example of the type of entanglements that can arise. “With no plan in place, you have no control over who gets your assets,” she said. “For example, you might think that your current wife would get the house you live in, but if you have children from a different marriage, half of the house actually goes to your children.
“The consequence is your wife and your children are co-owners of the house. Neither side can sell the property without consent of the other side. [But] what if your wife and children do not get along? All kinds of issues could come up that would all need to be litigated in court.”
Davenport noted that the devastation and suddenness of Hurricane Katrina showed how traumatic and difficult life can be for family members and loved ones of the recently deceased. Not only were matters of inheritance and division of assets brought up after the storm, government programs like Road Home benefits sometimes became ensnared in courtroom drama.
“Many people did not have wills and many people did not open up successions,” she said. “Some families thought that if you lived in the house, and as long as you paid the taxes you were fine. However, it was not until their house was damaged in the storm that they realized that they could not get Road Home money to fix up the house because they did not technically own it. It was still in the name of their deceased parents, and sometimes this was a multi-generation[al] problem. So as a result, some of these families lost their family home to blight and/or delinquent taxes.”
Such negative developments were especially felt among the local Black community. She said that once families lost control of the home, they were then exploited by developers and outside forces.
“Real estate investors would come along and buy the property from a tax or blight sale, and the family never gets a penny,” Davenport said. “This was really big in African-American communities after Katrina.”
Within the Black community – as well as among Latino populations, Native Americans and low-income residents – barriers to successfully planning for the future include a lack of education on the subject, as well as limited access to qualified attorneys and other advisors who work specifically with vulnerable populations.
Beyond lack of access, cost of estate planning services is the major barrier for many people of color. Davenport said opening succession plans can be especially costly, with tabs for just filing fees reaching $400 or higher in Orleans and Jefferson parishes. That doesn’t include attorney fees.
However, several opportunities for low-cost, direct help are available, including the Louis A. Martinet Legal Society, the Louisiana Bar Association and the New Orleans Bar Association, which has a “modest means” program that provides a list of attorneys who could take the case at a reduced cost. Another possibility is the Pro Bono Project, which offers legal services for successions, and Southeast Louisiana Legal Services.
There is something called a Simple Succession which costs less to file (about $200 instead of $400) but you would need an attorney to determine if this is something that would work in your case.
Oliver said that posing the issue of low-income families’ access to legal help “is always a loaded and complex question, so the answer is yes and no.”
“Obviously,” he said, “there are costs involved to get a lawyer to properly prepare all these documents. However, I will say that the state has made it possible for all of these things to be done at minimal costs, [such as the] costs of a local notary.”
Oliver said state law provides detailed requirements for olographic wills, “but in short, anyone can write a will in their own handwriting, with a date and signature and a few other requirements.” He said that such a process can help people with no means to pay attorneys fees, adding that “this route allows a person to write a will absolutely free, not even the costs of a notary.
Still, more assistance is needed.
“There really needs to be more resources in this area to help citizens with succession and estate planning,” Davenport said. “Education is also key.”
That’s a sentiment seconded by Oliver, who stressed that people of color, who face unique challenges while undertaking end-of-life planning, and who are succumbing to coronavirus at higher rates, must be knowledgeable of the process, and have the means to go through that process.
“Education and access would be the first two things that come to mind,” Oliver said. “Having a family lawyer and [an] education on the purpose and benefits of these documents is important.” Oliver also acknowledged that figuring out where to start can be intimidating.
Oliver added, “Peace of mind alone, knowing that your affairs are in order, can create the mental space needed to focus on other things, as these days nothing seems to be too far fetched or beyond the imagination.”
This article originally published in the June 22, 2020 print edition of The Louisiana Weekly newspaper.
