Do I need a Will?
While a will is not required in Louisiana, I highly recommend all individuals have a Will prepared by a professional. If you die without a Will, the intestacy laws of Louisiana will determine who inherits your money, property and belongings. You have no control over how your estate is disbursed without a Will. Also, intestacy laws determine who represents your estate and it may not be the person you would have chosen. You do not avoid a succession by not having a Will. You only increase the potential for unnecessary delay and expense of administration without preparing a Will.
What can I do with a properly prepared and executed Will?
- Establish a trust for children or grandchildren to control at what age they receive their inheritance
- Put assets in trust to protect it from an heir’s creditors or from an heir’s mismanagement
- Appoint a legal guardian of your minor children
- Leave specific items or a certain amount of money to an individual or charity
- Leave different fractions or percentages to different heirs so that not all heirs inherit equal portions
- Provide your surviving spouse with a usufruct over your property that terminates at death or sooner
- Grant your spouse a usufruct with the ability to sell or dispose of assets without requiring consent of the naked owners/children
- Delay or eliminate Federal Estate Taxes/Inheritance Taxes/Death Tax
- Require that an heir survive you for a certain period of time before receiving anything
- Provide for independent administration of your estate in order to save time and expense
- Name a person to serve as executor of your estate
- Name substitute legatees, beneficiaries of testamentary trusts, guardians and/or executors
- Preserve family property or a family business with a trust or other estate planning strategies
Why should I hire an attorney to prepare a Will for me? Can’t I write down what I want and have that be my Will or use one of those Do-It-Yourself websites?
Louisiana law provides particular form requirements for a valid Will. If you prepare you own Will or use an Internet form Will that does not meet these requirements, your Will will be invalid. Then the laws of intestacy will apply. A trained professional can explain the form requirements and ensure that you have a property drafted and executed Will. Additionally, an attorney will be able to include in your Will tax savings and probate expense saving provisions, as well as special provisions for trusts and/or minor children.
I heard from a friend/read on the Internet that I should put everything I own into a trust now so that I avoid a succession. Is that true?
There are advantages and disadvantages to transferring your property to a trust for estate planning purposes. It is important to discuss the effects and consequences of such a transfer with a qualified professional. In my experience, the cost of preparation of such a trust and the unintended consequences can be far more expensive than the probate proceeding of a well drafted Will. However, a trust may be appropriate and a thorough review of your assets and liabilities should be done before you transfer your property to a trust. I would be happy to discuss your options with you.
Isn’t estate planning only for retirees and the wealthy?
Absolutely not! If you have minor children, you should have Will. If you own immovable property, you should have a Will. If you want to have control over where your assets go when you die, you should have a Will. If you have life insurance that would be left to your minor children, a Will with a trust should be considered.
Here are some things to consider: If you’re married, not all of your property may end up going to your spouse without a Will. If you are single and have no children, you may be surprised to learn that the law would make you siblings (including half-siblings) and your parents heirs. If you have no children, no spouse, no siblings and no parents, you heirs may be your aunts/uncles or cousins. If you would like a say-so over what happens to your property and assets, you need a Will.
Do I need a succession or probate? What’s the difference?
Whenever a person dies and a court must supervise the disbursement of his or her estate, we call the process a succession. Not all assets are succession assets that require use of the courts. As a general rule, anytime a person dies owning immovable property (i.e. land, a house, a farm, etc.) a succession is needed to transfer the title of that property to the deceased person’s heirs. As with all rules though, there are exceptions.
When a person dies with a valid will, the succession process includes “probating” (or proving) the will. Within the succession proceeding, the debts, claims and taxes against the decedent are paid or negotiated and the remaining assets are disbursed to the heirs pursuant to a Will or Louisiana intestacy law.
What assets do not require a succession?
Assets that do not require a succession are certain annuities, IRAs, life insurance policies, and qualified retirement plans with named beneficiaries.
I’ve been told a succession can last years and cost tens of thousands of dollars. How can I avoid that?
While there are certainly successions that last years (sometimes decades) and waste precious estate assets in litigation, this is not the norm. A well drafted Will prepared by an experienced estate planning attorney can prevent the likelihood of such a situation occurring.
What is a Small Succession by Affidavit?
The court-supervised succession procedure can be avoided for estates that are valued at less than $125,000 at the time of death, when the decedent domiciled in Louisiana dies without a Will AND the sole heirs are the descendants, ascendants, brothers or sisters or descendants of brothers and sisters or surviving spouse.
The Small Succession by Affidavit may also be used when the decedent was not domiciled in Louisiana at the time of death, had a Will that was probated in another state and has Louisiana property valued less than $125,000.
If a person dies without a Will, who inherits his or her property?
The answer to this question would depend on whether the property is a community asset (obtained during a marriage) or a separate asset.
Community Property –
The surviving spouse gets his/her ½ interest in the property in full ownership. The decedent’s ½ interest is disbursed as follows:
- If decedent has children, the children receive it subject to a usufruct of the surviving spouse. If a child predeceased the parent, that child’s child would represent his/her parent and inherit.
- If the decedent had no children or grandchildren, the surviving spouse would inherit the the community property.
Separate Property –
- If decedent has children, the children inherit the separate property. If a child predeceased the parent, that child’s child would represent his/her parent and inherit.
- If decedent has no children or grandchildren, the separate property will be inherited by his/her siblings. His/her parents would have a usufruct.
- If decedent has no children or grandchildren, and no siblings or nephews or nieces, his parents inherit his property.
- If decedent has no children or grandchildren, and no siblings or nephews or nieces, and his parents predeceased, the surviving spouse would inherit the separate property.
- If decedent has no children or grandchildren, and no siblings or nephews or nieces, no surviving spouse and his parents predeceased, his/her property is inherited by the nearest ascendants (grandparents, great grandparents), or if no ascendants, by his nearest collateral relations (i.e. cousins).
- In the event the decedent is survived by no blood or legal relations, the state would inherit the property.
What is a forced heir?
A forced heir is a child of the deceased who has not reached his/her 24th birthday or who is mentally or physically disabled. A grandchild can be a forced heir to his/her grandparent IF the grandchild’s predeceased parent would not have yet reached his or her 24th birthday. The law also allows a grandchild to be a forced heir to his/her grandparent IF the grandchild is mentally or physically disabled AND the grandchild’s parent predeceased.
If a person dies leaving one forced heir, the forced heir must receive at least ¼ of the value of the estate. If there are two or more forced heirs, the forced portion is ½.
The laws on forced heirship are detailed and can be complicated. Contact my office to discuss the particulars of your forced heir ship questions.