Often, the prospect of writing a will brings up feelings of uneasiness and anxiety. Yet, devising a will is one of the most important factors in estate planning, one that should promote feelings of security. Wills do not have to be complicated in order to be effective. Having a will ensures that Louisiana law will not dictate the distribution of your assets, the custody of your children, or the care of those under your responsibility with special needs.
A will is a formal, legal document instructing your survivors in the settlement of your estate. A qualified, experienced, estate lawyer in Lafayette can help ensure your will is properly written and contributes to the overall success of your estate plan. It is strongly recommended that everyone consider having a will done, regardless of the value of the estate. The reason is simple: If you die without a will, you automatically forfeit the chance to direct the dealings of your estate. In addition to facilitating requests, a will is an opportunity for you to designate your own executor, guardians for minor children, and other fiduciaries.
If you have decided that you would like your estate to pass to personal friends or charity, a will is the primary means of fulfilling these wishes. Without a will, the courts will have no way of knowing your preferences and will seek relatives—however distant—for distribution purposes. For those who have life partners and are not married, wills are a means of helping to ensure that these loved ones will be included, whereas Louisiana’s intestacy laws do not recognize these very important people.
Many people chose to shift the majority of their assets into trusts or use joint ownership of property under the mistaken belief that their estate will be able to avoid many of the judicial processes upon their death. However, not all types of assets qualify for these “safe havens.” A will, however, does have the potential to cover all assets, leaving no property unaccounted for and no stone unturned.
Wills are a means of providing security to you and your loved ones. The topic may be emotionally challenging, but when the many advantages are measured, they far outweigh temporary discomfort. Careful estate planning is the best way to identify how your assets will be divided, who will be in charge of distributing those assets and who will receive benefits according to your wishes. In essence, a will is one of the only opportunities in life that allows you to write the law! Give me a call and let me help you write your law!
About Wills & Successions
The only way to truly ensure that your wishes at death are known and carried out is to have a will. Wills do not have to be complicated in order to be effective. If you own property, have children, recently married or divorced or would like to make a specific bequest at your passing, then now is the time to prepare your will. Likewise, if you have a will but have not reviewed it within the last year, now is the time to make certain that your old will fits your current needs and desires.
If you have recently lost a loved one, we offer our deepest condolences. As you’ve likely already experienced though, there are legal procedures required in order to manage and settle the affairs of your loved one. We are available to guide you through that legal process. In addition to drafting wills, we can help you draft a Healthcare Power of Attorney (also known as a “Living Will”) and/or Durable Power of Attorney that will ensure the continued management of your affairs in the event that you become incapacitated during your life.
Louisiana is a community property state and things acquired by the effort, skill or industry of one spouse are shared by both spouses. Generally, property acquired during a marriage is considered community property. There are some exceptions such as property acquired with money that is separate property or gifts made to one spouse.
Dying Without A Will
Also called intestacy, a decedent’s property will go into the hands of the person or class of people most closely related to the decedent as set forth by the Louisiana Legislature.
– Children (and possibly other decedents through representation)
– Parents and/or siblings (If parents and siblings, parents get a usufruct and siblings get naked ownership)
– Direct ascendants of the closest relationship inherit to the exclusion of others. If there are ascendants of equal degree on both sides (mother and father), they split.
– Collateral relatives (aunts, cousins) of the closest degree.
– Surviving spouse gets a usufruct community property, all of decedent’s children get naked ownership in equal shares
– If there are no children, surviving spouse inherits all of community property
– Parents and/or siblings will get their relative’s share (If parents and siblings, parents get a usufruct and siblings get naked ownership)
– Direct ascendants to the closest relationship will get their relative’s share. The closest by degree inherits to the exclusion of others. If there are ascendants of equal degree on both sides (mother and father), they split.
– Collateral relatives (aunts, cousins) of the closest degree will get their relative’s share.
Children under the age of 24 and children of any age who cannot take care of themselves are forced heirs and must inherit a portion of the estate. The portion is a percentage based on the number of children (forced heirs). Grandchildren may be forced heirs if their parent is deceased and would have been a forced heir.
All property of a deceased person must be probated for ownership to pass to another. Small estates (value less than $50,000 and no immovable property) can be probated with one pleading.
Trusts are juridical entities that can have ownership of property. One benefit of trusts in estate planning is allowing money and other assets to grow tax free until disbursed to the beneficiaries. The types of trusts are too numerous to list and describe here.
There are two types of wills currently used, olographic and notarial.
” An olographic will is written in the testator’s handwriting and has been signed and dated by the testator. To probate an olographic will there must be evidence of the testator’s handwriting.
” A notarial will is a testament that has been signed before a notary and two witnesses. The testator must sign every page of the testament.
The requirements of a will are donative intent and to fit the formal requirements of the type of will, be it olographic or notarial.
This allows a person who is not the owner of property to enjoy the use and the fruits of the property. An owner of property subject to a usufruct is called a naked owner. Often times, a surviving spouse will get a usufruct over the community property while the children get the naked ownership.
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