By Katie PennyThe provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the below legal concepts.
The law knows you might not have a will or the money to hire a lawyer to write one up for you. Because the law knows this, the law in Louisiana provides a specific procedure for your property to pass to your heirs. So, let me tell you first of all what will happen if you never write a will, and then what kind of will you can write without a lawyer.
If you die without leaving a will, that is called dying "intestate," or "without a testament." If you die having left a will, that is called dying "testate." If you die intestate, the "rules of intestacy" will provide the order in which your heirs will inherit your property.
On a side note, if you die intestate, the people who inherit from you are called "heirs." If you die testate, the persons who inherit through your testament are called "legatees." If you say you had a will, but then call the people inheriting from it "heirs," a lawyer will become upset and unhappy in a way which reasonable people will find ridiculous.
The order of intestate succession is this: first, descendants (children); next, privileged ascendants and privileged collaterals (fancy-talk for parents and siblings or the children of deceased siblings); next, the surviving spouse not judicially separated; next, other ascendants and descendants; next, other collaterals relatives (aunts and cousins, for example—people who are relatives who are not ascendants or descendants; this is why your brothers and sisters are called “collaterals,” because they are not ascendants or descendants); and finally, the state of Louisiana.
The way this works is that if there is a surviving person in a higher category, they inherit your property to the exclusion of persons in a lower category. So if you have kids, your mom will not inherit anything—your kids will get everything.
Community property works a little differently. If you have kids, they inherit the ownership of your ½ of the community property with your spouse inheriting his/her own half; however, your spouse gets to use and enjoy your ½ of the community property until his/her death or remarriage and the kids cannot stop him/her. And let me say, this is the most basic gist of the way intestate succession actually works.
Sometimes people don’t write wills simply because the intestate order of succession is perfectly acceptable to them—most people want their children to inherit everything—equally anyway.
However, if you want to do something that deviates from this basic plan, you have an option. But before I even begin: do not, I repeat, do not get a prepackaged, pre-pared will off of the internet. In Louisiana, we only recognize 2 kinds of wills, both with pretty stringent requirements. Considering the befuddlement of the rest of the nation regarding Louisiana's laws, the chances are pretty slim that any pre-prepared form will be proper in Louisiana.
There are 2 kinds of wills in Louisisana: a notarial testament, which is the one you should absolutely leave to an attorney, and an olographic testament. To make an olographic testament, you don’t need witnesses.
An olographic testament is one entirely written, dated, and signed in the handwriting of the person who the will is regarding. I repeat, handwriting, so get out your Bic and a notebook, because this is the only way that it will be valid. If it is typed, the law will ignore everything but the handwriting. If all that is handwritten is your signature, the court can only consider the non-typed portions, so your signature will be your will.
This does not accomplish much. You must write it in your own handwriting. It must be dated in such a way as to be very clear what date you mean. So, for example, do not write 9-9-99, when you can just as easily write September 9, 1999. Make it easy on the court. Also, you should sign it at the very end.
If there is typing anywhere, the law will ignore it. If there are later additions, they will only be considered if they are in your handwriting also. Do not typwrite anything. If even the date is typed, the whole document is invalid. Close your computer, take a pen and a notebook, and go out to a field, where you will not even be tempted to type anything.
Further, don’t play with fire and tempt fate by just writing your initials instead of your signature. For once, just sign your entire name. If the document goes on for more than 2 pages, it is a good idea to sign every page, though it is not required that you sign more than the one time at the very end. To be on the safe side, sign your whole name, and date perfectly every single page and again at the end.
If the document is entirely written, signed, and dated in your own handwriting, and if it is clear you are intending to write a will, and not just a letter, then the court will consider this your olographic will and, if it is proved in court, which is not difficult for an attorney to do, will put it into effect.
However, let me say this: if you are very rich and have a lot of complicated property, this might not be the way to go. My grandmother left an olographic will, indicating that my aunt should get the china, my uncle the tchotchkes from Germany, etc... If Meemaw had been the beneficiary of 7 trusts containing millions of dollars, and was the CFO and stockholder of several multinational corporations, you can see why a written will would probably not have covered everything. The more complicated your property is, the more likely you should go to an attorney.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
