What If I Die Without a Will in Louisiana?

What Does a Will Do?

A will is a legal document in which you specify your wishes for who manages your estate, who inherits your property, and who cares for your young children. In your will, you can do the following:

• Identify your personal property and real estate
• Name beneficiaries you choose to inherit your assets
• Select a personal representative (called a succession representative in Louisiana) who locates your assets, submits your will to the probate court, manages the succession process, and follows your wishes to distribute assets to your beneficiaries. Your personal representative also inventories your safe deposit box, files tax returns, and contacts social security upon your death.
• Choose a guardian for your minor children
• Set aside funds for and name a caregiver for your pets
• Make charitable donations

With a will, the probate process (called a succession proceeding in Louisiana) moves more quickly, saving your family and loved ones time and money.

What Doesn’t a Will Do?

There are certain assets that do not transfer by will, such as transfer-on-death bank accounts, retirement accounts or IRAs, and life insurance policies. These “non-probate” assets and accounts transfer according to the terms of their legal documents or with beneficiary designations. Examples of “non-probate” assets are the following:

• Funds in payable-on-death or transfer-on-death bank accounts or investment accounts
• Proceeds of life insurance and annuities to named beneficiaries
• Proceeds from retirement plans, pensions, 401(k)s, IRAs, and Keoughs
• Property owned as joint tenants with right of survivorship
• Trust property, including living trusts and assets owned by trusts

If you have any of the above, check that you have named a beneficiary and backup beneficiary on all these accounts and policies. If an account or policy does not have a beneficiary, that asset will go into your probate estate.

Who Can Make a Will in Louisiana?

A person making their will, called a testator, must meet the following requirements to make a will in Louisiana.

• Age: The testator is at least 16 years of age unless making a will in favor of their spouse and children.
• Mental capacity: Some states refer to mental capacity as having a “sound mind.” The testator must understand that they are making their will and understand the implications.

The testator must have the requisite mental capacity when signing their will. Louisiana residents with concerns about if they can make a will should consult with an estate planning attorney for legal advice.

Does Louisiana Have a Statutory Will?

No. Louisiana does not provide a state form for a will. You can either hire an attorney to draft one for you or create one yourself. Many people use estate planning solutions such as FindLaw Legal Forms and Services. If you are doing it yourself, using a legal form-building service that complies with Louisiana law is essential.

What Types of Wills Does Louisiana Accept?

There are many ways to make a will, but only two are acceptable according to Louisiana state law: handwritten (olographic) testatments and notarial testaments (a written will signed by the testator). But it is good to understand the different types of wills and Louisiana laws regarding them.

• Handwritten Will: A handwritten will, called an olographic testatment, is entirely written in the testator’s handwriting by the testator, dated anywhere on the will, and signed by the testator at the end.
• Oral Will: An oral or spoken will, called a nuncupative testament, may only be legally binding under strict adherence to Art. 2884. Oral wills have many requirements so it is best to avoid this type of will.
• Electronic Will: Some states allow electronic wills. An electronic will is signed, witnessed, or notarized through electronic methods. At this time, Louisiana does not permit electronic wills.

Typically, most wills are notarial testaments, meaning the testator signed and dated their written will in front of two competent witnesses and in the notary’s presence. Note: In Louisiana, the testator must sign each page of their will.

Can I Make My Own Will in Louisiana?

Yes. You can make your own will in Louisiana. You are not required to use an attorney to draft your will. If you know who you want to handle your estate, what assets you have, and who you wish to receive those assets, you are ready to make a will. The advantage of online will drafting services, such as FindLaw Legal Forms and Services, is that you can customize and update your will whenever you want. So, if you have a death in the family or the birth of a new child, you can replace your original will with a new will instead of adding an amendment or codicil that may get lost.

How Do I Make My Will Valid in Louisiana?

To make your will valid, you must follow Louisiana’s specific requirements.

• Signature: The testator must sign the will at the end and on each page of their will in the presence of a notary and two witnesses.
• Witnesses: Two competent witnesses are in the testator’s presence and each other’s presence at the time of signing. Some states prohibit interested witnesses, meaning witnesses who receive something in the will. Using interested witnesses in Louisiana does not invalidate your will. But an interested witness may receive the lesser of the gift in your will or the intestate share unless the witness is an heir in intestacy. It is best to use disinterested witnesses. Also, Louisiana does not permit witnesses who:
  • Are insane
  • Are blind or deaf
  • Are under the age of 16
  • Cannot read or sign their name
• Notary: In addition to two witnesses, a notary public must see you sign your name and attest to your signature.
• Self-Proving Affidavit: Most states have a self-proving affidavit where witnesses sign a sworn statement before a notary that they saw the testator sign their will. The signed and notarized affidavit makes a will self-proving, so the witnesses do not have to testify in court as to the will’s authenticity. Louisiana does not have a self-proving affidavit but does have mandatory attestation clauses that the testator and witnesses sign to make a will valid.

Can I Disinherit My Spouse in Louisiana?

You may try to disinherit your spouse. Since Louisiana is a community property state, the surviving spouse receives half of the community property. You decide who receives your separate property. But if you died with more wealth than your spouse, your spouse may try to claim a share or martial portion of your estate. If you want to disinherit your spouse, discussing it with a lawyer is best.

Can I Disinherit My Children in Louisiana?

Louisiana has special rules about disinheriting children, called disinherison of forced heirs. A forced heir is a child 23 years of age or younger or who is permanently disabled at the time of the decedent’s death. Generally, you may not disinherit a forced heir from your estate, but there are some exceptions, such as if your child was guilty of cruel treatment toward you or being a minor and marrying without your consent. The rules of disinherison and forced heirship in Louisiana are tricky, so if you intend to disinherit a child, you should consult a lawyer.

What Estate Planning Documents Should I Have in Louisiana?

A will gives you peace of mind and makes things easier for your family after you die. But you should consider other estate planning documents that are helpful during your lifetime.

• Power of Attorney. A power of attorney is a document that allows you to appoint someone you trust as your agent to make financial decisions for you. You may want this in the case of an incapacity or even for convenience. Your agent has a fiduciary duty to act in your best interest. You determine what powers to grant your agent and when your agent’s authority begins and ends.
• Living Will. A living will or advance medical directive lets you name a person to make health care decisions on your behalf if you are unable. It also allows you to leave instructions about life-sustaining treatments and end-of-life care. If you don’t leave your wishes, your loved ones must figure out what you want.

Fortunately, making a valid will and creating other Louisiana estate planning documents is easy with online estate planning templates.