Creating a Louisiana last will and testament is important if you wish to have control over the distribution of real and personal property upon your death. Louisiana wills give the person writing the will, called the testator, the opportunity to provide for a spouse, children, and other loved ones after her death. You can also make a charitable contribution via your Louisiana will.
It is important to note that a last will differs from a living will in that the latter provides instructions in the event that you become incapacitated and cannot make decisions regarding your health and medical care. Such a document, permitted in Louisiana under its Living Will Law, would take effect during your lifetime, if necessary, as opposed to a last will and testament, which only takes effect after your death.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
Having a last will and testament can be beneficial for many reasons, including the fact that it allows the testator to choose the executor or personal representative of her estate, the person who will be responsible for carrying out the wishes contained in the will. If you do not choose an executor of your estate in a will, a court will do so for you.
A will can serve various purposes, most notably by providing a way for the testator to detail how assets such as real estate, personal possessions, and bank accounts, should be divided upon her death. In general, Louisiana law permits you to dispose of your property as you see fit, with some exceptions as described more fully below.
Moreover, a Louisiana wills allows you to name someone as the legal guardian of your children and/or handle property left to minor children.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate, called “succession proceeding” in Louisiana, is the court-supervised process of distributing the estate of a deceased person.
In Louisiana, a Petition for Probate of Testament must be filed with the court to request the recognition of the will as valid. If the will is “notarial,” i.e., executed under Louisiana law pertaining to wills and not handwritten, it is self-proven and, therefore, valid. On the other hand, if the will is holographic (handwritten), further evidence must be presented to prove its validity.
Once a will is proven in probate court, the personal representative can proceed with the administration of the estate.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Louisiana, in the absence of a will, the share of the surviving spouse depends on whether the decedent had surviving descendants, parents, or other close relatives.
If there is a surviving spouse and children, the spouse has a right to use the decedent’s community property (shared with spouse) for life and the children inherit the decedent’s share upon the death of the spouse; the children also inherit the decedent’s separate property.
If there is a surviving spouse and parents (but no children), the spouse inherits the community property, while the parents inherit the separate property; the same holds true if there is a surviving spouse and siblings, only the siblings inherit instead of parents.
If there is no surviving spouse or children but only parents and siblings, the parents have the right to use the decedent’s intestate property for life, and then the siblings inherit everything.
Accordingly, you can see the importance of making a Louisiana will if you would like to have control over the distribution of your assets and to avoid the application of intestacy laws.
Exceptions to Ability to Distribute Property
Not all property owned by the testator may pass through a Louisiana will, most notably any property owned in joint tenancy with the rights of survivorship, which passes automatically to the survivor. Also, any community property goes directly to the surviving spouse.
Moreover, Louisiana has the concept of “forced heirship,” which provides that certain heirs are entitled to receive a percentage of the estate: Forced heirs as defined as follows:
[D]escendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.
Form a Last Will in Louisiana
The basic requirements for a Louisiana last will and testament include the following:
- Age and capacity: None specified.
- Signature: In the presence of a notary and two competent witnesses, the testator must declare or signify to the witnesses that the document is his Louisiana Last Will and Testament and must sign his name at the end of the document and on each other separate page.
- Witnesses: At least two people must sign a declaration signifying that they have witnessed the testator signing the will or declaring the document to be his will. This must be done in the presence of a notary.
- Writing: A Louisiana will must be in writing to be valid.
- Beneficiaries: Louisiana does not limit the class of beneficiaries who may be included in a will.
Other Kinds of Recognized Last Wills in Louisiana
In addition to the last will and testament as described above, Louisiana also recognizes holographic (handwritten) wills (called “holographic” in most other states) as valid legal documents so long as the entire document is in the testator’s handwriting and is signed and dated by the testator.
Changing a Louisiana Last Will and Testament
A Louisiana last will and testament may be changed whenever the testator wants to do so through a codicil, an amendment to the will that must follow the execution procedures of wills.
Revoking a Louisiana Last Will and Testament
The revocation of a Louisiana will can be accomplished in the following ways:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency;
(2) By a writing that formally declares the intention to revoke the will; or
(b) By destruction of the will.
Note that in Louisiana, a will is also revoked upon the subsequent birth or adoption of a child unless the will provides for such contingency.
Ready to create a last will? LegalZoom can help you make a will online in three easy steps. LegalZoom also offers other important legal documents to help plan for the future, such as a living will, power of attorney, and living trust.