Written by: Attorney R. Jerome Andries
Many people believe they do not need a Last Will and Testament in Louisiana. Either they feel they don’t have enough assets to warrant the need for a will or that their family will protect their wishes without written documentation. Both of those assumptions are incorrect and can cause trouble when you die. First, you don’t have to be wealthy to need a will that directs your last wishes. Also, family almost never does what you ask of them when you die. This is a well-known fact in the legal community and the cause of family splits. A valid Louisiana Last Will and Testament, or “will,” ensures that your wishes are followed and your property is passed to who you want to receive it, with a few small caveats provided by law.
If you die in Louisiana without a will, it is known as “intestate.” The State of Louisiana has developed a specific set of rules and laws that will direct what happens to your estate or property when you die. This body of law will determine who receives your property if you die without a will in Louisiana.
Let’s repeat that: The State of Louisiana determines who gets your property if you die without a will. That should be enough to make you consider speaking with a Louisiana estate attorney to execute a will as soon as you can. While the law of the land determines who inherits your property, it’s not always who you would have chosen, but there’s nothing that can be done to change it if you didn’t have a valid will in place when you died.
Also, Louisiana intestate law is not always favorable to your surviving spouse. The surviving spouse is normally the individual who seeks the help of an attorney because of step-children coming to claim their property. The fact is that if you die intestate, or without a will, your surviving spouse only owns their separate property and ½ of the community in full ownership. The other ½ of the community property (the deceased) goes to the children in what’s called naked ownership. The surviving spouse is granted usufruct. The Louisiana term “usufruct” grants the surviving spouse the “use” of the deceased’s half of the community property. The person granted usufruct does not own the property in full, but shares ownership with another party. According to Louisiana law, usufruct expires when the surviving spouse dies or remarries, whichever comes first. Once usufruct expires, that portion of the community property reverts back to the step-children in full ownership.
Here’s an example to simplify: Jane and Bob are married. They own a home together and Bob has children from a previous marriage. Bob dies without a will, or intestate. Jane is the surviving spouse. Jane owns ½ of the home in full as her portion of the community property. She is granted usufruct or use of Bob’s ½ of the home. Bob’s children own ½ of the home in naked ownership. When usufruct expires, Jane will own ½ of home and Bob’s children will own ½ of home. If Jane remarries, Bob’s children will effectively own ½ of home and Jane will either have to buy them out or sell the home. This is an extremely common scenario that you do not want to happen. It can be avoided by speaking with an attorney and executing a will.
- Check out our in-depth Louisiana Succession Guide for more information.
Can You Have Usufruct For Life?
Yes, you can execute a will that state’s an individual can enjoy the benefits of usufruct for life. How does that change Jane and Bob’s situation? Bob can still allow his children to own his ½ of the community property, but still allow Jane to have usufruct for life – even if she remarries. When Jane dies, Bob’s ownership in the home will revert back to the children and they can inherit. This protects Jane from getting kicked out of the marital home by her step-children.
You never know how your children will treat your surviving spouse when you pass. It’s a well-known fact among attorneys that step-children do not always treat the surviving spouse well. They often try to force them out of the marital home, force them to sell or try to remove contents claiming they own them. In some instances, they are correct which is why you should consider getting a will in place to protect your surviving spouse.
One of the biggest issues seen with an intestate succession is the children reclaiming their inheritance and kicking the surviving spouse out of the home when they remarry. If you love a person enough to marry them, you should want them to enjoy things you built together, even if they remarry. Speak with a Louisiana succession attorney about executing a lifetime usufruct. This will allow your spouse to use your property for the remainder of their life and is often used in situations where you want your spouse to have “use” of your property until he or she dies, but ultimately want your heirs to inherit the property when your surviving spouse dies.
Can Heirs Donate Their Inheritance to My Surviving Spouse?
Yes. Adult children can donate their portion of the marital home back to your surviving spouse to give him or her full ownership of the property. However, they don’t have to. They can tell you they will while you’re alive, but it cannot be enforced unless you have a valid Louisiana Last Will and Testament, preferably drawn up by a lawyer. One of the biggest issues estate lawyers see when someone dies intestate or without a will is when the surviving spouse remarries. The adult children sometimes view the new person as a “replacement” to their parent. Anger and resentment sometimes fester until they make the decision to take legal action and retain a lawyer to have your surviving spouse removed from the property or to force them to sell.
Here’s How to Protect Your Spouse And Allow Them to Keep the Marital Home:
- Give your spouse your property in full ownership. This is the ultimate way for them to keep the property for the remainder of their lives and to take advantage of the benefits of owning the property. This gives your spouse the option to sell the property and use the proceeds for something else and they can donate the property to anyone they choose. It’s important to remember that if you give your spouse full ownership of your property, it remains in their lineage when they die. This may not be your desire if you have adult children and prefer to have the property re-enter your lineage when your spouse dies. If you give full ownership of your property to your spouse and they die, your children DO NOT INHERIT and the property is no longer a part of your lineage. Many people want their spouse to have “use” of their property, but to revert back to their children at some point. The next option is more desirable for that situation;
- Give your spouse a lifetime usufruct over your property. Louisiana usufruct law provides that your surviving spouse will have “use” of your property for the remainder of their life, even if they remarry. The property will revert back to your lineage and family line once they die because usufruct only gives your spouse the use of your property when you die. This option is more desirable for those who want to protect their spouse when they die, but eventually want the property back in their family.
You Can’t Change Your Mind Once You Die
It’s obvious that you cannot come back to tell anyone what your wishes truly were, but you also can’t rely on someone’s word that they will do what you ask. You must execute a valid Louisiana Last Will and Testament to protect your wishes and to ensure your loved ones receive what you intend for them.
It’s easier to handle situations before you die than to let your family fight over your property. Estate litigation has the tendency to last years and will tear your family apart. It’s not a pretty sight and any attorney will tell you that it happens often. You merely have to execute a few documents with an attorney that has experience writing will and your wishes will be conveyed and can be brought to court if needed.
Get Your Louisiana Will Done Right
Louisiana wills have a specific set of guidelines or they will be invalidated by the court system. It is highly recommended that you speak with a Louisiana Estate Attorney before it’s too late and have them execute the proper documents. This isn’t something you should try on your own as many people have successfully invalidated handwritten wills or LegalZoom wills in court and went against a deceased’s wishes. Louisiana law is different from any other state and you can’t rely on online will companies as they are not from Louisiana, nor are they attorneys. Online will writing companies merely provide a form and they have don’t always stand in court.
Louisiana Succession Attorney
R. Jerome Andries
We help clients with succession matters all over Louisiana
Call Me: (318) 269-5857
Email Me: Jerome@AndriesLawFirm.com
Mail Me: P.O. Box 731, Marksville LA, 71351
Disclaimer: This blog post is not intended to be used as legal advice. You must speak with an attorney regarding your legal issues. This website does not offer legal advice, nor can anything on this site be taken as legal advice.