Do I need a Will?

June 8, 2015


This is a question that I get a lot and one that is not necessarily a simple answer.  In Louisaina if you die without a will, your estate is goverened by the Louisiana Laws of Intestacy.  Without going too deep in the laws of intestacy, basically if you are married your half of the community property and your separate property go to your children in undivided equal shares with your spouse having a usufruct, or use of all property as if it was his or hers, for life or until they remarry.  However, if the surviving spouse ever wants to sell any immovable property, etc., then the children, also referred to as "naked" owners, would have to sign off on the sale.  There is much more involved in Louisiana laws of intestacy, such as if there are no children, etc., but this is the most common scenario.  


Many of you would now say, "well that's what I want to happen anyway", but there are numerous other reasons for a will.  For example, if you would like the usufruct to extend for life and not end upon the remarrying of the survivg spouse, this is a clause that would need to be included in a will, to make that possible.  Also, there are many times where the testator would like to leave specific bequests to grandchildren, friends, or a specific child.  Again, a will would be necessary to facilitate those bequests.  Another factor, and one that is often overlooked, is that a will can be a fantastic, inexpensive, estate planning tool.  This is actually an area that is often overlooked in will preparation, but one that should be utilized.  For example, when Medicaid looks to see if you qualify when you are in need of long term care in a nursing home or other like facility, any usufructs are also considered the property of the surviving spouse for medicaid eligibility calculations.  However, with proper will preparation you can leave your surviving spouse a usufruct of all of your property, "until such time as it is medically deemed necessary that you must enter a long term care facility".  At this point, the usufruct ends and you have effectively protected half of your estate.  


I also get many questions as to whether online wills or handwritten wills are any good in Louisiana.  I can't unequivically say that all online wills are no good, but the majority of the ones I have seen are missing some elements required by the Louisaina Civil Code and they are therefore null and void on their face.  On quite a few occasions, people have come to me to do a succession and I unfortunately have to tell them that the will is no good.  On something as important as a will, spend a little more and hire a Louisiana attorney to prepare the document for you and know that upon your death, the loved ones that you want to inherit your estate are the ones that do.  


Hand written will or Olographic Wills as they are called in Louisiana are enforceable, but I advise clients to just rely on them in an emergency or until you can have a notarial will written by an attorney.  If you are going in for surgery and can't get to an attorney then in order to meet the requirements to make it enforceable, write it in your own hand (can't type it), sign it at the end of the document, number the pages, and date it somewhere on the document.  Once you are able to get to an attorney, bring your Olographic will with you, as it makes it easier for us to prepare your will seeing how you structured the one you wrote.

Writing wills requires "terms of art" in an 


easy to read, understandable format, which adheres to all of the requirements of the Louisiana Civil Code.  Don't take a chance doing it yourself or not having a will.  See a Louisiana attorney and have one prepared as soon as possible, as its never too early to have a will.  


This month I am running a special and will provide up to an hour of meeting and will preparation for $150.00.  Call (318) 387-2201 to make an appointment today!


The above is informative and not meant to be legal advice or form an attorney-client relationship.

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Attorney Todd C. Martin was voted as a finalist in the "Best Attorney" category of Delta Style's "Best of the Delta"



ADDRESS: 511 Stubbs Ave., Monroe, LA 71201

PHONE: (318) 387-2201

Fax: (318) 737-7189



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