Why You Should Have a Will

A properly drafted testament (will) is the cornerstone of an effective estate plan. Unfortunately, it is estimated that 70% of Americans die without a will. If you die with a valid will, you died testate. If you died without a valid will, you died intestate. If you die intestate, the State of Louisiana’s intestacy laws determine who will inherit your estate. The problem with the intestacy laws is that you lose all control with regard to who inherits your estate. In addition, your estate may be subjected to unnecessary estate taxes that could have been avoided with proper planning.

A will does not have to be a lengthy, complex document. On the contrary, many wills are rather simple documents that define who will inherit which assets. In addition, the will typically names the executor and an attorney for the succession.

The following information is from John’s book, Louisiana Retirement and Estate Planning. To order a copy of his book, click here.

What Happens if You Die Without a Valid Will

If you die without a will, the Louisiana intestacy laws provide the following rules for the distribution of your estate:

Intestate Heirs of Community Property

1. Descendants (children or grandchildren) inherit half of the community property, subject to the usufruct of the surviving spouse. The usufruct will terminate upon the remarriage of the surviving spouse.
2. If there are no descendants, the surviving spouse inherits all of the community property.

Intestate Heirs of Separate Property

1. Descendants inherit the separate property in full ownership (no usufruct to the surviving spouse).
2. If no descendants survive, the decedent’s brothers and sisters (or their descendants) inherit the separate property, subject to a usufruct in favor of the decedent’s surviving parents. If no parents survive, brothers and sisters inherit in full ownership.
3. If none of the above survives, the surviving spouse inherits the separate property in full ownership.
4. If none of the above survives, the decedent’s closest collateral relation inherits the estate.
5. The bottom line is that if you die without a will, all control over the distribution of your estate is lost, and your assets will be distributed according to the Louisiana intestacy laws.

Advantages of Having a Will

If you die with a properly drafted will, you maintain control over your estate distribution and can accomplish the following goals:

1. Make special bequests of jewelry, cash or the family home to your spouse, child or other individual.
2. Make bequests to your surviving spouse to delay or totally eliminate Federal Estate Taxes.
3. Provide your spouse with a usufruct for life over community and separate property.
4. Select a guardian for your minor child if you are the surviving parent.
5. Place you children’s assets in trust to prevent misuse by their surviving parent.
6. Protect your children or grandchildren’s assets from creditors with a spendthrift trust.
7. Satisfy Louisiana’s forced heirship requirement, even if you leave the full use (usufruct) over your estate to your surviving spouse for life or other time period.
8. Place your children’s inheritance in trust to protect the assets from mismanagement and wasteful spending.
9. Create a QTIP trust to provide for professional management of assets left to your surviving spouse, with all income paid at least annually to your surviving spouse for life. This trust will also ensure that after the surviving spouse dies, your children will ultimately receive these assets upon attaining the age you determine appropriate.
10. Grant to your spouse a usufruct for life of your property so it may qualify for the Federal Estate Tax marital deduction. On the other hand, you may wish to terminate the usufruct upon remarriage or other event depending on your specific situation.
11. Grant to your spouse the “extra” usufruct rights of selling, exchanging or disposing of non-consumable property (such as real estate) without the consent of the naked owners who are generally the children. This is important in order to give the surviving spouse the freedom to sell real estate such as the family home without the children’s consent. If the surviving spouse and a child have a falling out, the child can withhold their consent to sell the family home. To avoid this possibility, the will can provide that the surviving spouse can dispose of non-consumable property without the naked owner’s consent.
12. Make specific bequests to grandchildren, charities or unrelated parties.
13. Appoint two or more executors to “watch over” each other.
14. Provide for alternative legatees if your spouse, children or other legatees do not survive.
15. Direct your executor to make QTIP elections to defer or eliminate Federal Estate Taxes.
16. Establish trusts for children or grandchildren who are unable to manage their affairs or require professional management of funds. You select the ages the children or grandchildren will receive the property from the trust.
17. Make charitable bequests to the charity of your choice.

Types of Wills in Louisiana

Two types of wills are currently utilized in Louisiana. The first type is the notarial will and the second type is the oligraphic will. The will does not have to be recorded upon its execution. As Louisiana law does not allow joint wills, each person must execute his or her own will.

Notarial Wills

A notarial will is executed in the presence of a notary and two witnesses after the testator (the person executing the will) declares that he has read the will and acknowledges that this instrument is his last will and testament This is the type of will your attorney will draft for you. It is signed and dated on each page and notarized.

Oligraphic Wills

The second type of will currently used in Louisiana is the oligraphic will. An oligraphic will is entirely handwritten in the testator’s handwriting, signed, and dated by the testator. An oligraphic will does not need to be notarized and requires no witnesses. Due to the complex nature of estate planning, it is highly recommended that you seek competent legal advice before attempting to draft any type of will.

How to Revoke Your Will

A will may be revoked by destroying the original will and any duplicate copies. If the original will cannot be found, there is a rebuttable presumption that the will was revoked. Courts have allowed a copy of the will to be probated because the original could not be found, and there was sufficient evidence to support that the testator did not wish to revoke his will.

A will may also be revoked by executing a subsequent will that expressly revokes a prior will. If the subsequent will does not expressly revoke the entire previous will, only dispositions of property that are incompatible or in conflict with the previous will are revoked. If property subject to a specific legacy in a will is disposed of (such as by sale, donation, use or destruction), the legacy will lapse. For example, if the Testator’s will has a clause which leaves his Chevrolet truck to his nephew and the Testator sells the truck prior to his death, the legacy lapses. An additional way the testator may revoke a will is by stating clearly in writing that he revokes his will. This statement must be entirely written and signed by the testator. Although there is no requirement that this statement be dated, it is a good idea to date such a statement. The testator may also revoke a testament by a signed writing on the testament itself.

If the testator is divorced from the legatee after the will is executed and at the time of his death, legacies to the former spouse are revoked. Likewise testamentary designations and appointment such as executor or trustee are likewise revoked. The testator can provide that such provisions not be revoked in the event of divorce at the time of the testator’s death.

Changes or Amendments to a Will

A will may be amended by a Codicil. A Codicil is a written document that is executed with the same formalities of a will. Typically a codicil is used if minor changes need to be made.

Foreign Wills

If a will was executed in another state and the testator subsequently moved to Louisiana, the will is valid in Louisiana so long as it was properly executed under the laws of the state of the testator’s former domicile. Likewise, if the testator moves from Louisiana to another state, the will is valid in that state, so long as the will was properly executed according to the laws in Louisiana. If you have a will that was executed in another state, you should have your will reviewed by a competent estate planning attorney to ensure that community property, usufruct and forced heirship issues are addressed.

Selecting the Succession Representative

Typically the surviving spouse is named the succession representative or executor (executrix if of the feminine gender) of the estate. If there is no surviving spouse or if the surviving spouse is unwilling or unable to serve as the succession representative, the testator typically looks to the children to act in this capacity. Many times the eldest child is named succession representative; however, it is prudent to select the child who will best handle the duties of the succession representative.

Because each estate is different, the testator must consider the complexity of the estate when naming the succession representative. In addition, how close in proximity the children live to the testator is also a consideration. If the estate is complex and will require an administration, a prudent choice is to select a succession representative who is more comfortable with handling such affairs. It is also more convenient to name a succession representative who lives locally. Finally, the succession representative must have sufficient time to devote to the duties inherent of a succession representative.

Independent Administrators

The testator may provide that the succession representative serve as an independent administrator. The testator may so provide by stating in his will that his succession representative shall serve as an independent administrator. Independent executor means the same as independent administrator. An independent administrator shall have all of the powers and rights of a standard succession representative, but without the requirement of petitioning the court or the requirement of publishing notices for the sale of property. Providing for an independent administration can greatly streamline the succession process by allowing the independent administrator to act without court authority.

Although independent administration streamlines probate, the reduction of court supervision may cause some concern to testators or other interested parties. For that reason, the testator may specifically prohibit an independent administration. In addition, any interested party may request that the independent administrator furnish security. The court may order that adequate security be furnished if it is deemed necessary. Furthermore the annual accountings are not required for an independent administration; however, any interested party may demand an annual accounting. A final accounting by the independent administrator is required unless it is waived by the heirs and legatees.

Naming an Attorney for the Succession

The testator may name an attorney in their will to represent the succession. As the testator’s selection of attorney is not legally binding on the legatees, they may select another attorney of their preference.

Contact lawyer John E. Sirois in Metairie at 985-580-2520 if you have questions about community property or planning your estate. Click on the Estate Planning Checklist to begin planning your estate. You may also e-mail him for a consultation.