LAST WILL AND TESTAMENT
If you die without a Will, your estate is considered “intestate,” which basically means you have opted in to the Government’s Estate Plan. State law, not you, determines who is in control, as well as when, how and to whom your assets will be distributed. Every state has it’s own rules. You need a Will to avoid default rules and minimize disputes. Consult with our experienced Louisiana Probate attorneys who also specialize in Wills with any questions about Louisiana intestate law.
What Is A Will?
The legal definition of a Louisiana Will is:
“A donation mortis causa is an act to take effect at the death of the donor by which he disposes of the whole or a part of his property.” (La. Civ. Code Art. 1469)
In plain English, a Will is just a gift that takes effect at death. That’s it. For this reason, you can change a Will at any time – as long as you have capacity.
The person who makes a will is referred to as a Testator if male, or Testatrix if female.
A Will governs probate assets, which are basically anything you own that is NOT governed by beneficiary designation. A Will does not govern nonprobate assets which are transferred by beneficiary designation, such as life insurance proceeds, annuities, or retirement plans.
The people who will receive your assets at death are known as legatees if you have a valid Louisiana Will, or heirs if you do not have a Will.
What Are the Requirements That Make a Will Valid?
There are two kinds of Wills in Louisiana:
- Notarial Will
- Olographic Will
An Olographic Will, sometimes referred to as a handwritten will, is valid if the Instrument is entirely handwritten by the testator, dated somewhere in the instrument, and signed at the end. Olographic Wills are ripe for dispute. A good example, would be Aretha Franklin, who made three handwritten wills, two of which were found in a locked cabinet and one in a couch cushion. A handwritten will that is unclear is an invitation for a Will contest.
A Notarial Will is the most legally sound form of a testament in Louisiana and is difficult to challenge.
Louisiana Civil Code Article 1577 provides the Requirements of Form of a Notarial Testament:
“The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and witness shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this __ day of _________, ____.”
A Notarial Will is absolutely null if there is any material deviation from the required form, or the formalities of execution. Mistakes can be very costly! In order to avoid costly mistakes, always consult with an experienced Estate Planning Attorney.
Other Useful Articles about Louisiana Wills
- Understanding the Contents of a Will
- Contesting a Will in Louisiana
- Third Circuit Issues Warning About Computer-Generated Wills and Testaments in Louisiana
- DIY Louisiana Will Execution Backfires
What is the Purpose of a Will?
The importance of a Will cannot be understated and allows you to do the following:
- Select an executor who will administer your estate and make sure the terms of your will are carried through
- Nominate tutors for minor children
- Choose the people (legatees) who will receive assets of your estate
- Establish one or more trusts and select a trustee to manage and protect inheritances
- Provide for special needs of legatees
- Integrate asset protection to protect legacies from unforeseen issues, such as lawsuits, liens, incapacity and divorce.
Protecting Everything You Own and Everyone You Love…
Whether you need a simple will, or require higher level estate planning to attain more complicated goals, we provide comprehensive, experienced representation. Preparing a will and planning your estate is a necessary step to protect for your family or loved ones in the event of death or incapacity. If you have questions about Trusts, or any other estate planning topics, please contact our office to schedule a free consultation, or use the link below to schedule your Free 15-Minute Call with an Wills Attorney.
J. Graves Theus, Jr. is the founding member of Theus Law Offices, and a fourth generation Louisiana lawyer with deep roots in the community. He received an LL.M. in Tax Law from Boston University School of Law in 1997, after graduating, cum laude, from Gonzaga University School of Law in 1996. Graves is licened to practice law in three states: Louisiana, Washington, and Alaska (a domestic asset protection jurisdiction). He is certified by the Louisiana State Board of Legal Specialization as a Specialist in Tax Law, as well as Estate Planning and Administration, and is an approved title agent. Graves is also accredited by the Veterans Administration to assist veterans with their pension claims.