Estate Planning / Successions / Wills

Louisiana law governing wills and succession is a complex mix of statutes, including very old concepts such as the right of usufruct and forced heirship. Without an experienced Louisiana estate planning attorney, it can be next to impossible to ensure that your wishes or those of a loved one are carried out.

A succession is the process, under Louisiana law, of settling one’s estate upon death and distributing property to the heirs after debts are paid (sometimes called probate in other states). Succession can also refer to the estate a person leaves behind at death.

Not all property goes through a succession in Louisiana. Assets that have a named beneficiary (for example, retirement assets, like IRAs and 401(k)s, life insurance policies and annuities) do not have to go through a succession. Instead, they are passed to the named beneficiary, so it is very important to ensure that beneficiary designations on all your accounts are up to date.

Louisiana Law And Wills

To protect your family, it is essential to sit down with a skilled, trusted attorney with experience in Louisiana estate planning law and create a legally sound last will and testament. A will helps ensure that you have a say in what happens to the fruits of a lifetime of your hard work. With it, you can determine to a large extent how your property will be distributed. You can also name a guardian for minor children (called a “tutor” in Louisiana law). You can create a trust for grandchildren, heirs with special needs, or heirs who are not yet financially responsible enough. A will allows you to make provisions that can reduce or eliminate the burden of an estate tax. A will also allows you to name an executor who collects the assets of your estate, pays any debts, and distributes your estate to your heirs.

In order to be legally binding, it is essential that a last will and testament follow the exact form and formalities prescribed under the Louisiana Civil Code. Otherwise, a will is considered void. Such a situation can create a legal nightmare for loved ones seeking to carry out the wishes of the deceased.

A well crafted will allow you to specify to whom you want to leave your property, regardless of your marital status. You can leave everything that is yours to your spouse, your children or your Uncle Joe. The only exception being cases involving a “forced heir.”

A “Forced Heir” Under Louisiana Law

Under the Louisiana Civil Code, any child of the deceased who is under the age of 24 or who is permanently incapable of taking care of himself or herself, regardless of age, is considered a forced heir. A forced heir is entitled to a portion of your estate that the forced heir can claim even if you have left all of your property to someone else, including your spouse. Married couples can, however, leave a lifetime usufruct to the surviving spouse over the forced heir’s inheritance so that the surviving spouse can benefit from the asset during the remainder of his or her lifetime.

Determining What Is Included In Your Estate Under Louisiana Law

If you are married, under Louisiana law, your estate generally consists of your separate property and half of the community property of the marriage.

Under Louisiana civil law, separate property includes:

• 1) property owned before marriage.
• 2) property inherited by one spouse during marriage.
• 3) property gifted to just one of the spouses during marriage.

Community property, according to the Louisiana Civil Code, is any and all property acquired by either spouse during a marriage that is not “separate property” as defined above. Generally, each spouse owns half of the community property acquired during marriage. What is considered community property, however, can be limited by a prenuptial agreement that both parties enter into prior to their marriage, called a “marriage contract” under Louisiana law.

Default Succession Under Louisiana Law

In Louisiana, generally if a person dies without a legally binding will or with no will at all, a specific succession is followed that treats separate and community property differently and includes the legal right of usufruct.

In general, separate property is inherent in the following order:

• 1. Children (or their descendants, if children are deceased)
• 2. Brothers and sisters (or if any of them are deceased, their descendants) with a usufruct to the living parent(s)
• 3. Parents
• 4. Spouse
• 5. Grandparents or other ascendants
• 6. Closest living relative
• 7. The State of Louisiana

At each step, the listed heir/s would inherit the entirety of the separate property of the estate. If no such heir/s exist, then all separate property goes to the next heir/s down the list.

Similarly, the deceased’s portion of the marriage’s community property is inherited in the following order:

• 1. To children (or their descendants, if the children are deceased), with a usufruct to the surviving spouse
• 2. To the surviving spouse

If there are no surviving direct descendants or spouse, the deceased portion of the marriage’s community is treated as separate property and is inherited according to the order above.

Usufruct

Usufruct and usufructuary are important legal terms as they make Louisiana wills and estate planning unique. A usufruct is the right to use property and receive the income from that property; a person who inherits this right is called a usufructuary. It is not uncommon in Louisiana for one person to inherit the usufruct and another person to inherit the underlying ownership of a property. This underlying ownership right is called “naked ownership” and entitles its holder to sell or mortgage this ownership (without affecting the usufructuary) and to the right to full ownership of the property after the death of the usufructuary. For example, a person could leave “naked ownership” of a home to his or her children and a usufruct to his or her spouse. The surviving spouse could live in or rent the home until his or her death at which time the children have full ownership rights to it.

The legal definition and interpretation of usufruct rights are complex and ever-changing under Louisiana civil law. It is essential to consult a trusted, experienced Louisiana estate planning attorney when considering including a usufruct in your will.

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