Publications and Guides

MAKING YOUR WILL

TAKING CARE OF YOUR LEGAL AFFAIRS
Everyone needs to plan for the future, regardless of health, age or assets. If you have a life-threatening illness it is especially important to make some crucial decisions as early as possible. Doing so will not only help you keep control of your affairs, but also may eliminate court proceedings later.

THINGS TO THINK ABOUT FOR WILLS
If you would like to meet with an AIDSLaw attorney, call the office at 504-568-1631 or 1-800-375-5035. To assist the attorney in the drafting of your document(s) please answer the following before your meeting. If you have any questions, be sure to write them down so that they may be discussed with the attorney.

As with most legal documents, you must be the person to contact our office for your documents. If someone else calls for you, someone may challenge the legality of the document, saying that it does not represent your wishes. If it is physically impossible for you to call, you should have your social worker call us. Again, taking care of your matters early helps avoid these problems.

Disposition. Who should get what? You should also think about backup dispositions, in case the person you designate cannot take the gift. Don't focus on every single item you own, but have a general idea about what you want to do with your assets when you call. Please also know the names, addresses, and phone numbers of those to whom you leave your property.

Executors.  The executor's job is to gather your assets and distribute them according to the Will.  The executor should live in Louisiana, not be a felon, be at least 18years of age, and should be somebody close to you, so you feel comfortable about him or her going through your things; somebody whom you trust to carry out the spirit as well as the letter of the Will; somebody with enough business experience to handle the estate's bank accounts efficiently and carefully.  You should name an alternate in case the person you name cannot serve.  Remember, the executor will hire a lawyer to take care of the legal end.  Again, please have the names, addresses, and phone number of the person you appoint as executor and alternate executor.

Items to bring with you.  Don't cancel you appointment if you cannot get these items together, but it would be useful for you to have them with you when you meet with the attorney.

1. Name of current or former spouse(s).  Place and date of marriages, divorces, separations or deaths.

2. Names and dates of birth of all of your children whether or not they are still living.

3. Name and address of a companion or partner.  If you have an agreement or contract with that  person about the ownership or disposition of your property, please bring the agreement with you to the interview.

4. A list of your major assets including real estate, interest in a business or professional practice,  bank accounts, stocks or bonds, cars, jewelry, artwork, furniture, with a list of who will take each item and an alternate designee.

5. Deposit slips for each bank account in your name or accounts you hold with another person.

6. A property description for each piece of real property (real estate) you may own.  This will be included in the Act of Sale by which you acquired the property, and may be attached to the back of that document.

7. If you own any stocks or bonds, a copy of a statement from your broker, or a list of the stocks and/or bonds.

8. Copies of any certificates of deposit you may hold.

9. Copies of the face pages (the page which shows the beneficiary) of any insurance policies or retirement plans you hold and copies of any designations or changes of beneficiary you have made.

10. Copies of all billing for credit cards in your name.

11. The full names and addresses of your parents, siblings, children and of anyone named in your Will or the other documents.

Other Considerations.  The doctrine of "forced heirship" may apply if you have a child who is under 24 or has a disability.  This means that a certain portion of your estate (the legitime) must go to the child.  The AIDSLaw attorney can further explain this concept at your meeting.  Otherwise, you are free to leave all or part of your property to any one or more persons and/or charities.

Burial Provisions.  It is usually not a good idea to include funeral, cremation, or burial arrangements in your Will.  Whatever you say in your Will is only advisory, and the funeral may be over before anybody even looks at the Will.

There are things you can do outside of the Will.  For example, if you want to keep the cost down and avoid a fancy funeral, you might want to contact a memorial association and make arrangements in advance.  You should also discuss your ideas with people around you, or leave them letters.

By executing an Affidavit for Disposition of Remains,  Louisiana residents can designate someone who will have control of their burial, cremation, or funeral.  You can then leave separate instruction to that person in the form of a letter.  If you do not pre-arrange or designate someone to be in charge, your nearest legal relative will have control of these matters.

IF THERE ARE CHILDREN
Guardians or Tutors. Who will take care of your children after you are gone? Naturally, if the other parent is living and is interested in the children, he or she will have primary responsibility. If the other parent is deceased or is not interested in the children, you can name a tutor, either in your Will or in a separate document.
Your choice of a tutor is only advisory: a court will appoint a tutor based on what the court thinks is best for the children. However, the wishes of the parents are always treated with respect and are almost always followed.

Trustees. If there is no surviving parent, you will want any major assets to be placed in a trust for the children. You should think about a trustee for this trust. The person should be somebody who is responsible and who will insure that the children's money is managed properly. Again, you should name successors in case your first choices can not serve, and give the attorney the names and addresses of all of the people you designate.
Backup Distributions. You will probably want the trust to end when the children are adults and get full control. You should have some ideas about what will happen to the money in, the trust if the children cannot take the assets when the trust terminates.
 Talk to your attorney about other plans for your children. These plans can be done outside of your Will, but are nonetheless very important. You should also read the AIDSLaw brochure entitled "IF YOU HAVE CHILDREN".
 

WHAT HAPPENS IF YOU DO NOT MAKE A WILL?
If you die without a valid will, your property passes according to a complex legal scheme to spouses, children, or blood or adopted relatives. Unless you are legally married, your partner, friend, or significant other receives nothing, regardless of the length or importance of the relationship. Additionally, if you die without a Will and no relative can be found to inherit your property, it will pass to the State.
 

CAN YOUR WILL BE CHALLENGED?
You may be concerned that your family will try to set aside your Will. If you are 18 years or older and have the mental capacity to make a Will, your Will should be recognized as valid. The term "mental capacity" is a legal term of art but, if a court finds that you have been misled in reaching your decision on how to dispose of all or part of your property, your Will could be held invalid. For this reason, a statutory Will executed in the presence of two or more witness and a Notary is recommended so that if needed, you have witnesses to later testify to your mental capacity. You can also avoid claims of "lack of sound mind" by executing your Will as soon as possible while your are reasonably healthy. Your health may rapidly change, and legal challenges to wills are often made on the basis that the person making the will was too weak to know what he or she was doing.

OTHER DOCUMENTS TO CONSIDER
A Durable Medical Power of Attorney gives someone else (a partner, spouse, close relative or trusted friend) the right to make decisions about your medical care if you are unable to make these decisions yourself. Unless your family lives in the same city with you, you should think seriously about signing a Durable Medical Power of Attorney.
By executing a Living Will you can direct which medical procedures you want performed in your final stages.

Through a General Power of Attorney you may authorize someone to manage your financial affairs on your behalf while you are still alive but unable to care for these details yourself. Of course, you can change these documents, including the Will at any time. For more information on these documents, see the AIDSLaw publication, "ADVANCE MEDICAL DIRECTIVES."

AIDSLaw SERVICES
AIDSLaw of Louisiana, Inc. provides free assistance with HIV-related legal problems.
 
This brochure is designed to provide general information. Although this brochure is prepared by professionals, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought. AIDSLaw can provide legal assistance or referrals to persons needing services.
 
In addition to the issues of estate planning discussed in this booklet, HIV-infection makes it important for you to think about several other issues, such as confidentiality and discrimination, child custody, and insurance and financial planning.
 
The AIDSLaw staff can provide you with additional information on these subjects and, when necessary, refer you to an HIV-sensitive and experienced attorney. If you are unable to afford an attorney, we will arrange for you to see one on a reduced or no cost basis.