Do I need a Will?

You decide.  When you die without having a will, you have died “intestate.”  That means the State of Louisiana makes the inheritance laws for you.  If you have children, your estate will be divided equally among them, and if you have a deceased child who left children, they will step up into the shoes of their deceased parent.  However, this inheritance of community property is subject to something called the “usufruct” of the surviving spouse (SS) who will have the use and income from the property.  Usufruct terminates upon the death or remarriage of the SS, so if the SS remarries, the children become the full owners.  This is where you have heard the horror stories about children forcing their parent to vacate and sell the family home in order to get their money.  If that scenario concerns you - then you need a will.  With a will, you can allow the SS usufruct for life, remarriage would be irrelevant. 

Another scenario where a will may be wanted is if either spouse has separate property.  Separate property is property acquired prior to marriage, or during marriage via gift or inheritance.  In an intestate situation, separate property goes to the children outright with no usufruct to the SS.  You would think the SS would be next in line, if the couple had no children.  Wrong!  The SS would only inherit the separate property if there were no surviving children, parents, siblings, nephews or nieces.  Again, with a will, you can direct where your separate property will go or give the SS usufruct.

What if you have minor children?  Not only is it important to appoint a tutor (guardian) for them of your choosing but you may also want their inheritance to be placed in a testamentary trust that they cannot frivolously access until a certain age or event (maybe age 25 or graduation from college).  And don’t forget about “forced heirship” - despite popular belief it has not been repealed.  If you have children that are under age 24 (or special needs children of any age) you must leave them a portion of your estate.  I often see wills where spouses have forced heirs yet leave each other everything – those wills are not valid!  Louisiana law can be quite complex and even more so if there are children from prior marriages. 

Plan ahead! The time to do your will is not the day before you leave for vacation (or are going in the hospital) although that is usually when we realize we really need one. Take the time to make these important decisions. You’ll be amazed at what peace-of-mind really is.



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