Frequently Asked Questions

 

 What happens to my estate if I don’t have a will?

Louisiana law is fairly clear on how your estate will be distributed if you die intestate. To be “intestate” literally means “without a testate” or a will. The most common reason that people fail to plan for their estate is that they simply don’t get around to it. Life gets in the way. Our lives are so busy, sometimes time just runs out.

If the deceased person (the DECEDENT) is married with children, and intestate, this is what the law dictates-

It is very important to realize that your spouse will NOT automatically inherit your property.

Without direction from an estate plan, the spouse will usually only receive USAFRUCT over the decedent’s portion of the COMMUNITY PROPERTY. The decedent’s portion is equal to one-half of the value of all of the community property. The community property consists of everything that the couple amassed during their marriage- real estate, vehicles, bank accounts, retirement accounts, furniture, jewelry, etc.

Usafruct gives the spouse the right to use the property and gather the “fruits” from the property. The “fruits” of the property would include rental income, business profits or crops to be harvested. But the right of usufruct does not allow the spouse to sell the property without the permission of those who have the rights of NAKED OWNERSHIP.

The children of the decedent would receive the NAKED OWNERSHIP of the deceased parent’s share of community property. That means that they have ownership rights, but not the right to use the property or obtain the fruits.

Things usually not included in the community property would be any asset acquired before the marriage or anything inherited by one of the parties. These items are considered SEPARATE PROPERTY. The separate property of the decedent would be transferred in full-ownership, directly to the children of the decedent.

The spouse’s usufruct over the decedent’s half of the community would last until he or she dies OR REMARRIES. If the spouse remarries, they lose the usufruct and the children then come into full ownership of the decedent’s estate. This is when unintended consequences can occur. The children would then have the right, if they choose, to force their parent or step-parent to turn over full ownership of the decedent’s estate- even if that means that the home and property must be sold.

This scenario is more likely to occur when the surviving spouse is not the natural parent of the decedent’s children. The situation can become even more complex when each spouse has separate children from previous marriages.

What kinds of wills are there and can I draft my own will?

To answer the first part of your question- there are two types of valid wills in Louisiana- OLOGRAPHIC and NOTARIAL. According to the Louisiana Civil Code, an olographic will is one that is written, signed and dated ENTIRELY in the handwriting of the person making the will. This type of will may be notarized, but does not have to be.

There are many problems that can arise with an olographic will that can cause the will or parts of the will to be invalided. The most common problem is that the will is not written in the proper form under the law. This can be dating issues, improper signatures, or the lack of proper language used to designate the document as a will. Another common problem arises when a person uses a “will form” that contains some typed information. Often, the typed portions of the will be invalidated because those segments were not “handwritten” as required.

The second type of will is notarial- meaning created by and/or signed by a notary and two witnesses. This type of will is usually created with the assistance of an attorney and is usually type-written except for the signatures. The notarial will also must follow the rules as to proper dating, signatures and form, to be valid.

To answer the second part of your question- Yes. You can draft your own will without assistance. But, because of the rules dictated by the Louisiana Civil Code and the possibility of the will or parts of the will possibly being invalidated, it would behoove you to seek legal advice. The fallout of an invalidated will cannot be undone if the testator is deceased. Therefore, the state, rather than you, will dictate how your estate will be distributed.

True or False? -  Only wealthy people need an estate plan.

FALSE. Everyone will eventually have their assets distributed after they pass away.  SOMEONE will get your stuff. Your estate plan should determine who that SOMEONE is.

If you die without a will, Louisiana state law will determine who your heirs are. But, if you plan ahead and create an estate plan, YOU determine who are your heirs and what they will receive. And remember, contrary to popular belief, in most cases, your spouse WILL NOT inherit ownership of your estate if you do not have a will.

So, EVERYONE who has an estate of any size should be concerned about how their estate is distributed after they are gone. And the best way to assure the right people get your stuff is with an estate plan.

Will my succession cost more or less if I have an estate plan in place?

It depends on what kind of estate plan you choose. If you create an estate plan with a will, the cost of filing your succession documents will not be much different than if you didn’t have a will. But, as explained above, it would be unwise to not have an estate plan of some kind.

A couple of the negatives for using a will, or not having any plan are; 1. The unpredictable costs of attorney fees for filing a succession and; 2. The delay in distribution of the estate assets while the heirs wait for the succession process to be completed. The succession process can take from many months to years to complete, dependent on the complexity.

Another option would be to create an estate plan using a LIVING TRUST. If the trust is properly implemented, there will be NO NEED for a succession at all. Living trusts are becoming more popular as an estate planning tool for this very reason. YOU control all aspects of your estate planning, including the costs to settle your estate.

It is important to note that the living trust as an estate planning method is NOT FOR EVERYONE. The living trust does provide serious benefits such as; 1. Immediate access to estate assets by the beneficiaries and; 2. Reasonable, controlled costs for the creation of the estate plan and the distribution of assets.

But, conversely, using a living trust for estate planning can create complications for the initiator of the trust by making banking, investment, and real estate transactions somewhat more cumbersome.

What does Forced Heirship mean?

In Louisiana, Civil Code article 1493 states that for a person to claim to be a forced heir of a decedent, they would have to prove the following conditions-

1.       That they are the child (natural or adopted) of the decedent. And;

2.       That they were 23 years old or younger at the time the decedent died. Or;

3.       That they are permanently incapable of taking care of themselves because of a mental or physical incapacity.

The question of Forced Heirship is only raised if the individual has been disinherited by the decedent. In other words, the decedent did not leave their child an inheritance, or in the common language, “They were cut out of the will.”

Disinherison as this is called, must be written expressly in the will and for one of eight just causes. Louisiana Civil Code Art. 1621 states that the following are valid reasons for the disinherison of children;

(1) The child has raised his hand to strike a parent, or has actually struck a parent; but a mere threat is not sufficient.

(2) The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury.

(3) The child has attempted to take the life of a parent.

(4) The child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death.

(5) The child has used any act of violence or coercion to hinder a parent from making a testament.

(6) The child, being a minor, has married without the consent of the parent.

(7) The child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death.

(8) The child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time.

If none of the above have occurred, the disinherited child has a claim as a forced heir and can ask for a share of their parent’s estate. The portion is equal up to 25% of the value of the estate.

How can I be assured that the right people inherit my estate?

The best way to assure that your estate is distributed according to your wishes is to have a comprehensive estate plan. Your estate plan should be done with the assistance of an attorney who is experienced in estate planning and who can discuss the variety of options available with wills and/or trusts.

Because life sometimes gets in the way, it would be wise to remember that it is never too early to plan for the future of your estate.

I’ve never had to work with a lawyer before. What can I expect?

The Succession Center has compassionately helped families pre-plan or complete successions since 2003. We pledge to our clients:

  1. We will be compassionate during your difficult times.

  2. Your initial consultation with the attorney is always FREE.

  3. Your legal services will be provided for a FLAT FEE- No hourly  rates and no surprise charges. Know the cost before you start.*

  4. Your documents will be completed and ready to sign within three business days of retaining us.*

  5. Your attorney will personally return your phone call within one business day.

  6. Your matter will be handled quickly and efficiently.

*Some exceptions apply. Your attorney will explain the process and timeframe at your initial consultation.