Roy M. Bowes & Associates - Wills and Successions

The only way to truly ensure that your wishes at death are known and carried out is to have a Will. Wills do not have to be complicated in order to be effective. If you own property, have children, recently married or divorced or would like to make a specific bequest at your passing, then now is the time to prepare your Will. Likewise, if you have a Will but have not reviewed it within the last year, now is the time to make certain that your Will fits your current needs and desires.

If you have recently lost a loved one, we offer our deepest sympathy. Your probably know there are legal procedures required in order to manage and settle the affairs of your deceased loved one. We are available to guide you through that legal process.

In addition to drafting Wills, we can help you draft a Healthcare Power of Attorney (also known as a “Living Will”) and/or Durable Power of Attorneys (General and Specific) that will ensure the continued management of your affairs in the event that you become incapacitated during your life.

Below is a discussion of a few key areas of consideration when drafting a Will.

Community Property

Louisiana is a community property state and things acquired by the effort, skill or labor of one spouse are shared by both spouses. Generally, property acquired during a marriage is considered community property. There are some exceptions such as property acquired with money that is separate property or gifts made to one spouse.

Dying Without A Will

Also called intestacy, a decedent’s property will go into the hands of the person or class of people most closely related to the decedent as set forth by the Louisiana Legislature. If a person dies without a Will his/her property will transfer in the follow manner:

Separate Property

• Children (and possibly other decedents through representation).
• Parents and/or siblings (If parents and siblings, parents get a usufruct and siblings get naked ownership).
• Direct ascendants of the closest relationship inherit to the exclusion of others. If there are ascendants of equal degree on both sides (mother and father), they split.
• Collateral relatives (aunts, cousins) of the closest degree.

Community Property

• Surviving spouse gets a usufruct of the community property. All of decedent’s children get the naked ownership in equal shares.
• If there are no children, the surviving spouse inherits all of the community property.
• Parents and/or siblings will get their relative’s share (If parents and siblings, parents get a usufruct and siblings get naked ownership).
• Direct ascendants to the closest relationship will get their relative’s share. The closest by degree inherits to the exclusion of others. If there are ascendants of equal degree on both sides (mother and father), they split.

Forced Heirs

Children under the age of 24 and children of any age who cannot take care of themselves are forced heirs and must inherit a portion of the estate. The portion is a percentage based on the number of children (forced heirs). Grandchildren may be forced heirs if their parent is deceased and would have been a forced heir.

Succession/Probate

All real estate of a deceased person must be probated for ownership to pass to another. Small estates (value less than $75,000.00 and no immovable property) can be probated with one pleading/affidavit if the decedent did not have a Will.

Trusts

Trusts are juridical entities that can have ownership of property. One benefit of trusts in estate planning is allowing money and other assets to grow tax free until disbursed to the beneficiaries. The type of trusts are too numerous to list and describe here. However, the use of a trust in a Last Will and Testament can be a very important financial planning tool for when a person has a significant estate and/or life insurance proceeds that the Testator wants to distribute at certain ages of his/her child(ren) with a protected flow of income to the surviving spouse.

Types of Wills

There are two types of Wills currently used, olographic and notarial.

An Olographic Will is written in the testator’s handwriting and has been signed and dated by the testator. To probate an Olographic Will there must be evidence of the testator’s handwriting.

A Notarial Will is a testament that has been signed before a Notary and two witnesses in a certain format required by law. The Testator must sign and date every page of the Testament. The advantage of a Notarial Will is that it is self proving and easy (less expensive to probate).

Requirements of Wills

The requirements of a Will are donative intent and to fit the formal requirements of the type of Will, be it Olographic or Notarial.

Usufruct

This allows a person who is not the owner of property to enjoy the use and fruits of the property. An owner of property subject to a usufruct is called a Naked Owner. Often times, a surviving spouse will get a usufruct over the community property while the children get the naked ownership.

Minor Children

Tutors are assigned to minor children when both parents pass away. Parents may indicate who they would like to serve in the event of their death. This can be done in a Will. If one parent survives the other, that parent may decide the Tutor of minor children. If deceased parents have not previously indicated who they would like to serve as Tutors, a court will decide.

Representation

Representation is when a person assumes the inheritance rights of a deceased parent. Donations to children and siblings are subject to representation.

Please see our blog for various articles on when you should update your Will and other estate/retirement ideas.