What happens under Louisiana law without a Last Will and Testament? Without a valid Louisiana Will, Louisiana law determines who receives your property, the form of ownership and the portion each intestate heir receives in the Succession. If there is a Will, then it is a Testate Succession requiring Probate, basically the proving of the Will in a Louisiana Succession procedure. Louisiana is one of only eight states that has community property laws and the only state that has forced heirship. Property acquired during marriage is presumed to be community property, but you can prove otherwise. With forced heirship, the forced heirs are generally children under age 24, persons that are incapacitated (even if over age 24) and grandchildren in limited situations. Because of community property and forced heirship issues, use of a Louisiana Succession Attorney is imperative. Online Wills and Trusts that purport to be valid in all jurisdictions are risky at best. .
Example: Married Couple with Separate Property without a Louisiana Will:
Assume a married couple does not write Louisiana Wills. One or both has separate property. As such, the separate property passes to that person's descendants to the exclusion of all other persons, including the surviving spouse. If there are no descendants, then the separate property passes to that person's siblings, with a Louisiana usufruct to the decedent's parents. Again, this is to the exclusion of the surviving spouse. The usufruct concept is unique to Louisiana. In its basic form, it is a right to the use of or income from property, thus a split ownership of sorts. Consult a Wills and Trust Lawyer to get a properly drafted Louisiana Will to change this result.
Example: Community Property without a Louisiana Will:
With community property, Louisiana inheritance rights are very different than separate property. If no valid Louisiana Will or Living Trust exists, the property passes by way of an intestate succession. Under community property laws, each spouse owns an undivided one-half interest in each and every asset, not just one-half of the value of the whole. Thus, at the death of the first spouse, his or her one-half interest in the personal residence (if community property) passes to heirs under Louisiana succession laws. The surviving spouse owns the other one-half interest outright. If they have children, the surviving spouse will own his or her half interest and receive a usufruct only (terminating on remarriage) over the decedent's undivided one-half interest. The usufruct is subject to the children's "naked ownership" i.e a split ownership with the children. This result can be changed by having Wills or a Living Trust drafted by a Louisiana Wills Attorney,
Louisiana Wills and Living Trusts
You do have the freedom to make your own law, within the confines of what is permissible under Louisiana law. In doing so, the Louisiana inheritance laws discussed above would not apply. There are limitations on this freedom e.g. Louisiana forced heirship laws provide limits on that freedom. Below are some of the reasons to have an attorney draft a Will or Living Trust on your behalf:
You, not the State of Louisiana, will decide who receives your property and in what proportions
Provide for minors, children with disabilities, grandchildren and others in testamentary trusts
Leave specific assets to certain persons and provide varying amounts based on need or relationship
Avoid the problems of intra-family disputes by taking the potential for arguments out of the equation
Name the executor of the succession. This executor has authority to hire a succession attorney.
A Louisiana Will can make charitable bequests which can also be a part of your estate planning
Estate tax planning and income tax planning in conjunction with the overall estate planning
Provide for independent administration to reduce probate costs and simplify the succession
Successions and Louisiana Probate, Louisiana law Provisions
In its most simple form, Louisiana succession procedure is the procedure whereby, with Court involvement, the assets and liabilities of the succession are formally listed, debts are paid and the remaining assets are ultimately distributed. An Intestate succession is one where there is no Will. A Testate succession involves a Last Will being presented for Probate. The Probate process essentially is the presentation of the Will to the court to prove its existence and validity. Certain assets normally avoid probate e.g life insurance and retirement plans, however, care must be taken in your beneficiary designations. These same assets are usually subject to the estate tax. An experienced succession lawyer can guide you through this process.
Unfortunately, not all families get along and it is not uncommon to see disputes surface among heirs in a succession proceeding or legatees under a last will that is probated. Proper planning can anticipate some of the common problem areas with specific provisions in Wills, Living Trusts or other planning vehicles that may avert some of these disputes. Costly succession litigation can hopefully be avoided with proper drafting by your Will and Trust lawyer. Without proper planning, all too often probate litigation (if a Will exists) or succession disputes can occur, requiring that you hire an attorney in the probate litigation that is likely. Examples are Will contests to dispute validity of the Last Will or the testamentary capacity of the testator. These can get ugly and costly and are usually avoidable.
The interrelationship of Louisiana law provisions on inheritance rights, community property and forced heirship, along with the potential estate tax issues, long term care planning and advanced medical directives makes it important that you consult with a Louisiana lawyer knowledgable in all of this areas of practice. A living trust may be appropriate planning for some, whereas use of a standard Will and Trust planning, along with medical powers of attorney and financial powers of attorney may be more appropriate and cost effective for others. Only a louisiana lawyer with experience in these areas can help you make a decision. Contact us for peace of mind that your family is being taken care of with proper estate planning.
Practice: Last Will Attorney, Wills and Trusts Attorney, Probate Attorney, Succession Lawyer, Estate and Trust Attorney, Living Trust Lawyer, Louisiana Probate, Estate Planning attorney, Louisiana Succession Attorney, Succession Litigation, Louisiana Probate Litigation, Wills and Successions Lawyer, Probate Litigation attorney.
For additional infomation on these and other topics give David Aymond, Attorney, a call at (985) 792-5220 or email David.
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