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Do I Need A New Will?

Sunday, February 03, 2013

The 1996 change to Louisiana's Constitution did away with forced heirship for children over 23 who are not disabled.

This means that as of that date, a person could execute a will leaving all of their property to their spouse or to heirs other than their children. However, many people still do not understand this change in the law and believe that it means they are not required to have a will.

If there is no will, the Louisiana law on intestacy applies. This means that your property is inherited by your children with your spouse having a usufruct (right of use) over your share of community property until he or she remarries. In order to leave your spouse all of your property, or to leave him or her your separate property, or to give him or her the right to use the property for life, you must make a will.

If you have a will written before 1996, if the language of the will indicates that the person executing it wanted their spouse to inherit all of the property, then the will is given effect under the new law. These are wills which have language such as " I give to my spouse, all of my property of whatever nature and kind, except for any forced portion as defined by the law in effect at the time of my death" or "I direct that my will be interpreted under the law in effect at the time of my death." If you are unsure how your will made prior to 1996 will be interpreted, please have it reviewed by an attorney.

You might also want to have your will changed if it does not make the executor "independent." This means that your executor can act without having specific court authority to do things such as sell property and make disbursements. This reduces court costs and expedites handling of the estate.

Please do not try to create a will by using a fill in the blank form from the internet or from an office supply store. These are not valid in Louisiana. Although a handwritten will may be valid if done correctly, most of the ones I see are not executed correctly and are invalid. Creating a valid will is not costly and will save your heirs money. If you have a will from another state, if done according to that other state's laws, it is valid in Louisiana. However, you should have it reviewed to make sure that it does not contain provisions that would cause problems in the handling of your estate in Louisiana. Lastly, should you decide to make changes in your will, changes cannot be made by striking out provisions on the will or writing in new provisions. Any changes must be done by a "codicil" or formal amendment to the will, or by creating a new will.