A. David Aymond, Attorney at Law, LL.M. in Taxation
209 Highway 22, Madisonville, Louisiana (985) 792-5220 27455 Hwy. 22, Ponchatoula, Louisiana (985) 845-3414
WILLS AND SUCCESSIONS, LOUISIANA INHERITANCE RIGHTS & PROBATE
Louisiana Inheritance Rights, Forced Heirship and Community Property:
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: