If you’re researching estate planning in Louisiana and considering executing a Last Will and Testament – congratulations, you’re ahead of the curve. Estate planning is incredibly important to you and your family. It gives you an opportunity to plan and make adjustments to ensure your family has everything they need and are provided for when you die. We all know you can’t come back to say what you wanted to happen with your property, now is your chance to set the record straight before it’s too late.
You may be asking yourself if you really need a Last Will and Testament. Either you don’t think you have enough assets to worry about or you honestly believe that your family will execute your wishes without a binding legal document. Both assumptions are wrong.
First, you don’t have to be blessed with wealth or property to have a need for a will in Louisiana. A will is a document that directs your last wishes. It tells your loved ones what you wanted to happen with your property when you die and it is a legal document that will hold up in court should the need arise.
Second, as much as you love your family, there is a good chance they will not respect your last wishes when it comes to your property and assets. It’s a cold, hard fact that Louisiana estate attorneys know too well. Adult children fight over property all the time. Your surviving spouse could face some adverse issues dealing with your adult children if you didn’t leave a will. They may tell you that they will provide for your surviving spouse when you die and that you don’t need a will to protect him or her, but this isn’t something you can chance. You can’t come back to tell anyone what you really wanted and a properly executed Louisiana Last Will and Testament is the best way to convey your last wishes.
What Types of Wills Are There in Louisiana?
There are two forms of testaments in Louisiana: Notarial and Olographic. While you may see numerous items in will, they all must adhere to form or they will be held invalid in court. People try to invalidate wills all the time in court, so you want to make sure you do your correctly.
Notarial Testaments (Typed)
Let’s discuss Notarial Testaments first. The notarial testament must follow the formalities of the Louisiana Civil Code in order to be valid and effective. Louisiana Civil Code Article 1577 explains further: “The notarial testament shall be prepared in writing and dated and shall be executed in the following manner: if the testator knowns how to sign his name and to read and is physically able to do both, then:
- In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
- In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In or presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____day of _______, _________.”
Notarial testaments or wills have quite a few rules to follow and if you don’t do it exactly like the Code states, someone could possibly take it to court and have the will deemed invalid. This would cause your last wishes to not be honored and Louisiana probate law will take over and decide where your property goes and to whom. That’s why it’s critically important that you do it right. It’s highly recommended that you speak with an attorney and have them draft your will and execute it in the proper form.
You must sign your will in the presence of a Notary Public and two competent witnesses or it won’t count. There have been a multitude of cases where the will wasn’t signed by a Notary Public and the will was held invalid. Also, there have been situations where the Notary Public stepped out of the room and didn’t witness the signature. This has been brought up in court and the Notary’s have been forced to testify that they did not see the signature. Same situation with the witnesses. Everyone must be present at the signing and stay there until it is done. Often, a witness will step out to answer the phone and the document gets signed without their presence. They could be brought into court years or even decades later to testify as to what happened that day when someone makes a challenge against the estate.
Olographic Testament (Handwritten)
You may have found this article by searching “Can a Louisiana Will Be Handwritten?” If so, you’re in the right place. The other form of testament Louisiana allows is called an Olographic Testament. Louisiana Civil Code Article 1575 sheds some light on this type of testament or will. “An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirements as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary. Additions and deletions on the testament may be given effect only if made by the hand of the testator.”
A will may be handwritten in Louisiana, but there are still a few rules to follow. Here’s a quick breakdown of what a handwritten will requires:
- Handwritten by the testator, or person;
- Dated in the handwriting of the testator;
- Signed in the handwriting of the testator at the end of the testament;
- If anything is written below the signature, the court will have discretion.
It’s important that everything in a handwritten will be written by the testator, or the person to whom the will is for. They must write it, date it and sign at the bottom.
What Does “Court Discretion” Mean?
If anything is written below the signature, it MAY be deemed a part of the will, but that will be up to the court to decide. Personally, you shouldn’t leave anything up to the interpretation of the judge, so it is best to follow the rules exactly as written. There’s a chance your family could take your will to court and a judge may decide that items written below your signature are not to be included in your will. Also, if you make additions to a handwritten will, it must be in your handwriting.
Handwritten Wills Must Be In Your Handwriting in Louisiana
If you choose to execute a handwritten will in Louisiana, you must write it yourself. You cannot have someone else write it and then you sign it. It’s not worth the chance of it being invalidated in court. You can easily have an attorney draft a will for you and have it executed without having to write it yourself. This is especially helpful if you cannot write without assistance.
How Do They Know It Is My Handwriting?
If your will is challenged, witnesses can be brought to court to testify to your handwriting. They can also bring an expert to compare writing samples. This can be an expensive endeavor and can drain your estate. No one wants family fighting after they’ve died, but it does happen. If there are any inconsistencies with the handwriting of your will, it’s possible that a judge will deem parts or the entire will to be invalid.
What If My Handwriting Changes As I Get Older?
This is a common issue as people get older. Your handwriting can change along with your health and it may be difficult to compare writing samples with your handwritten will. You may need witnesses to testify that it is your handwriting if it has changed drastically.
Do I Need an Attorney To Write a Will in Louisiana?
A Last Will and Testament is one of the most important documents you will ever use and it is highly recommended that you speak with an attorney to assist you. An improperly executed will can have lasting effects on those you leave behind. It could leave a loved one destitute or your surviving spouse in court fighting your adult children for the family home. It’s that important and should not be done on a whim. It’s easy to set an appointment with an experience Louisiana estate planning attorney. Many attorneys offer free consultations for you to speak with them and gather information. There’s a good chance that the attorney you choose to execute your will could be the attorney that also does your succession, so choose wisely. There’s nothing wrong with speaking to a few attorneys to see which ones you prefer to work with. Remember, your heirs may have to work with this same attorney or law firm. Here’s a handy article that can help with the process of finding an attorney in Louisiana.
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Disclaimer: This article is not intended to provide legal advice. You must speak with an attorney as this website is not a substitute for legal advice.