New Orleans Wills Lawyers

Will Preparation

If you do not have a will, one should be prepared. If you have a will in place, make sure that it complies with your objectives and with the current law. Important items that you need to consider include:

a) “Forced Heirship” – The 1995 changes to forced heirship law did not abolish forced heirship. Rather, it restricted the classification of forced heirs to persons 23 years of age or younger and persons of any age if mentally or physically incapacitated. Without a will, your children will be entitled to your community property subject to your surviving spouse’s legal usufruct. This creates numerous problems for clients with blended families and for those with outdated wills.

willsigningb) Independent Administration – In 2001, Louisiana adopted the very useful concept of “Independent Administration.” This can be used if stipulated in your will or if agreed to by all your heirs or legatees. If obtained, the Executor or Administrator does not have to seek prior court approval to dispose of assets. This is a particularly efficient and helpful development in the probate law and should be employed in most circumstances.

c) Specific Bequests – Absent a will, all community property devolves to your direct descendants subject to your spouse’s usufruct. If you have a family heirloom that you want a particular person to receive, it can be specified in your will. This is also applicable to a family business that you want to pass to a particular child who has worked for the company rather than having all of your children inherit it equally.

d) Guardianship or Tutor Provisions – If you have a minor child, you may stipulate in your will the person or persons that will have legal authority to raise your minor children.

e) Trust Provisions – A testamentary trust will allow your property to devolve over time to your heirs as well as protect the assets from seizure by creditors in many circumstances. This is important if your heirs are spendthrifts or if you simply want to ensure that they will have sufficient assets later in life rather than having your assets wasted in their youth.

f) Estate Administration – Your will can provide for the persons you name to execute the administration of your estate and succession. Absent a will, the courts would decide who your representative will be and this can be very contentious.

g) Multiple Marriages – Many problems can result when one or both spouses have children from prior unions. With a properly prepared estate plan, you can address these problems.

h) Transfer Out-of-State Real Estate – If a client dies owning real estate located in another state, a separate ancillary probate procedure will be required to transfer title of such real estate. If, instead, the real estate is transferred into an L.L.C., an ancillary proceeding can be avoided. The L.L.C. will also provide additional asset protection for your family.

i) Tax Planning – If your estate is valued at over $3,500,000, it is critical that you implement estate tax planning strategies. Many people do not think they have this much in assets, but the death benefit of life insurance alone can exceed this amount and will be included in your estate absent proper tax planning.

At this point, it makes sense to give you a brief overview of some of the tax issues involved in this planning.

Living Will – A living will is required if you do not want to have your life unnecessarily prolonged by artificial means. If you have a living will already, make sure that none of your heirs are witnesses as this will invalidate the document and could lead to costly medical bills and needless delays.