Do I need a Will?
One of the most misunderstood areas of Louisiana law is whether you need a will. Almost 10 years ago, Louisiana abolished forced heirship for most children over the age of 23. Since that significant change in the law, many Louisianans have incorrectly assumed they do not need a will. In rare cases, this is true. In most cases, major problems and regrettable consequences can be avoided by executing a valid will. This article should help you correctly determine if you need a will.
In Louisiana, property is divided into two principal categories: (1) separate; or (2) community. Most property acquired before marriage is separate property. Absent a pre-nuptial agreement, most property acquired during marriage is community property, except most property acquired by inheritance or donation. The characterization of your property as separate or community is important because, if you die without a will ("intestate"), Louisiana law controls the transfer of your property upon your death, and separate and community property pass by different rules.
If you die intestate, your community property passes to your children or grandchildren (if a child has predeceased you), subject to a usufruct (right to use the property and derive income therefrom) for life or remarriage in favor of your spouse. If you die intestate, your separate property passes to your children or grandchildren and no usufruct or any other rights are given to your surviving spouse.
Most people are not satisfied with these potential results. For instance, if you die intestate, your spouse does not receive full ownership over the family home. If your surviving spouse remarries, your children can force your surviving spouse to sell the house. Similarly, should your surviving spouse need to sell the home for liquidity or because it simply cannot be maintained, the consent of the children will be required. This often leads to problems and has the potential to create great strain on family relationships. In addition, few people are aware, that if they die without a will, their surviving spouse receives no rights whatsoever to any separate property. Frequently, some inherited or donated asset is used by spouses in an essential manner. Without a will, a surviving spouse will be deprived of any further use of this asset upon the death of the other spouse.
There are several other compelling reasons most people find it important to prepare and execute a will. A will allows you to designate who your succession representative will be. Recently, Louisiana approved the use of independent administrations. Independent administrations allow your estate to be handled in less formal and less expensive manner. However, there are fewer safeguards, which makes designation of the appropriate person very important. By will, you can also waive the requirement that your administrator post a bond, thereby reducing expenses to your succession. If you have young children, it is prudent to designate who the tutor (guardian) for your children will be should you and your spouse both die. Without such a designation, confusion and tension may develop among your relatives in deciding who will care for your children. This result can easily be avoided with a will.
A will can also be used to establish trusts. It is usually not a good idea to leave assets to children outright if they are under the age of 30. A trust can be used to administer assets for the benefit of children or young adults until they have reached sufficient maturity to manage assets for themselves. For larger estates, you will need a will to ensure that all tax exemptions available at your death are utilized. Without a will, certain tax exemptions a frequently lost, resulting in a significant increase in the taxes paid by your estate.
Most people find meeting with a lawyer and preparing a will to be a rewarding experience, placing their mind at ease that things will go smoothly at their death. If you prefer that you, and not the State of Louisiana, decide how your estate will be distributed, a will is the right decision for you.
