Estate Planning FAQ

Why bother with the effort of a Will?

Wills allow you to dictate what mark you leave behind. Help with the burden of making tough decisions for your family one last time. No one can control when they go, but anyone can control what their Will says. Why go gently and quietly to the other side when you can choose your legacy? Keep reading for more on how to take care of what you have and those you love.

What are common Will concerns?

If it is not legally binding, your Will has the possibility of not being followed at all. Hundreds of families fall apart in bitter disputes over who inherits what or how much someone is entitled. Wills may not cover all possible scenarios that could occur in the event of your death without someone involved who has seen it all before. 

What types of situations can a Will cover?

• Whether to continue or dissolve business activities

• What happens to financial obligations

• Small trinkets, gifts, and donations

• Custody arrangements for kids

• Who will take care of pets

• Housing or real estate

What if I don’t want to give anyone anything?

The courts may decide to give someone something you do not want them to have without a Will. The only way to avoid this is to explicitly discuss this in a Will by either stating where you want things to go or disinheriting someone. 

Are Wills needed when you have no money?

If you have any personal items you want passed on, detailing this in a Will can ensure the person you want gets the personal item you want them to have. 

What happens without a Will?

If you die without a Will, state laws will determine what happens with your belongings. Without a Will, assets would not have a clear purpose, and might be passed on to other people, never seeing who you actually want to leave your valuables to. 

Is Doing It Yourself better than nothing?

Wills written by any online template service, such as LegalZoom, are invalid. They are not Olographic Wills and they don’t follow the Notarial Will rules. If Wills based off of templates do not meet the State’s requirements, they are considered invalid. If any mistakes are found within a personally written Will it could also be considered invalid. If an agent does not have access to your Will then it cannot be carried out.

What types of Wills are there?

Article 1574 of Louisiana Civil Code recognizes two types of Wills: Olographic and Notarial. Both types of Wills must be serious in mindset and written from a lucid form of mind. Someone cannot drunkenly write it on the back of a cocktail napkin with a joke in it; solemn document.

Olographic Wills as described in Article 1575:

• Must be entirely written, dated, and signed in the handwriting of the testator (the person for whom the Will is written)

• Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament

•  Everything you want should be written in your own hand above the signature

• Technically the court may consider any additions under the signature line, BUT it is up to their discretion

  • Which means it does not have to be enforced.

Notarial Wills as described in Article 1576:

• Two witnesses

• One notary

• Attestation Clause- A provision at the end for the witnesses and notary to certify that the document has been prepared and signed by the testator in their presence

• Every page initialed by you and signed at the end

• Written by lawyers

Who can inherit?

LA Civil Code Article 899 states that the nearest living relation succeeds by default, unless otherwise directed in a Will.

Types of heirs established by Articles 888, 891-896 of Louisiana Civil Code:

• Descendants (children and grandchildren)

• Brothers, sisters, and parents

• Surviving spouse

• Ascendants (more remote than parents: such as grandparents, great grandparents)

• Collaterals (more remote than siblings: like aunts, uncles)

• The State

What is the difference between community property and separate property?

In Louisiana, community property means that it was acquired from within a marriage. Separate property comes from outside of that marriage. See articles 889-896 and 2335-2341.1.

How does having an attorney validate your Will?

More often than not, the intended succession of assets is unsuccessful due to simply not having a verifiable Will.

With an Olographic Will there is no absolute certainty whether your Will will be honored. Olographic Wills are easier to contest since it is harder to prove that a Will is actually your Will without witnesses, a notary, and legal procedure. 

Your heirs will be able to have automatic access to your assets as beneficiaries to avoid court estate procedures (known as the probate process) with a Will drafted by an attorney. Anything without such designation must go through the probate process. You can ensure your wishes are carried out if the worst should come to pass by having a legal, Notarial Will. 

But isn’t it expensive to get a Will drafted by a lawyer?

• Self written Wills are free upfront, though they may not be legal.

• Online Will templates have minimal expenses. However, they are technically invalid.

• A Will drafted by an attorney is not only affordable, but also potentially saves money for your estate through strategic planning.

What are legal considerations lawyers address?

• Minimize estate taxes for your family by including a donation in your Will to reduce the value of your estate. 

• Choose the executor of your estate to figure out who will handle affairs such as paying bills and any ongoing business endeavors.

• Name a trustee to be administrator of your estate if you want someone else to help with the grunt work like filing papers or handling personal items. 

• Would you like to set up a Trust to give people assets at certain times in their life?

• If anything happens to change your mind, you can have your Will updated at any time to reflect your new wishes. 

• Lawyers will remind you about scenarios you might not otherwise consider such as designating a Power of Attorney or Health Care Proxy in the event you cannot make choices for yourself. 

Not only do lawyers plan estates, but they also provide experience:

Plan for as many unknown unknowns as possible by having professionals who are familiar with cases related to yours consult on the best interests of your estate. 

Do the work of taking care of private concerns up front for loved ones so they do not have to down the road. It is difficult to give peace of mind during grief, but at least there is a measure you can take to make personal responsibilities easier. Look into estate planning for yourself by booking a free consultation today with the Law Office of Christopher Szeto.

Glossary:

Term: Testator

LA Civil Code: CC 1571, CC 1572

Definition: Person who a Will is written for.

Example: The testator passed on his baby alligator to his favorite litigator. 

Term: Succession

LA Civil Code: CC 871

Definition: How an estate transfers from deceased to successors, or people who will inherit

Example: Queen Elizabeth succeeded to the throne in England.

Term: Testate Succession

LA Civil Code: CC 874

Definition: Succession as a result of a legal Will

Example: Rashida Jones is likely to benefit from the testate succession of Quincy Jones.

Term: Intestate Succession

LA Civil Code: CC 875

Definition: Succession without a legal Will

Example: The baby was given to protective services as part of intestate succession, because there was no Will in place or family available to say otherwise.

Term: Degrees of Relationship

LA Civil Code: CC 900

Definition: Each generation is called a degree

Example: The nearest relative will be decided by degree of relationship.

Term: Direct and Collateral Relationship

LA Civil Code: CC 901

Definition: Direct succession refers to a linear order of ascension or descension in the family tree. Collateral succession comes from relationships not in the direct line of succession such as siblings and siblings’ children.

Example: If someone has no living Direct Relationships, their Collateral Relationships are the next people looked at to see who gets what.

Term: Administrator of Estate

LA Civil Code: CC 1415, CC 1424

Definition: A person appointed by a court to manage someone’s estate after their death.

Example: The Law Office of Christopher Szeto is offering free Wills upfront if made Administrator of Estate.*

*Terms and conditions apply.

**Disclaimer: This content is not legal advice and does not create an attorney client relationship.

If you are seeking assistance from a lawyer in New Orleans, please book a free consultation at (504) 226-2292.