If you live in Louisiana, planning your estate might be a little complicated. The state has laws relating to inheritances that aren’t shared by any other jurisdiction. Probate is called “succession” here, and the state code applies a legal concept called “usufruct” to property, so one beneficiary may have the right to live in or use the inheritance while another beneficiary holds a form of ownership.
Louisiana’s Usufruct Laws
The term usufruct loosely translates to “use” and “fruits.” Under Louisiana law, you have the right to leave a beneficiary the right to use or live in certain property, and you can give actual ownership of the same property to someone else. This second person is called a “naked owner,” and he’s the only one who actually has a right to sell the property. He can do it while the first beneficiary is still living there, but the new owner can't evict her -- all he can sell is his eventual right to make use of the property. When she dies, her usufruct passes to the beneficiary who has naked ownership and he then has full ownership. You might consider making a bequest like this so you can control what happens to your property when your first beneficiary dies. Because she doesn’t own it outright, she can’t pass it to anyone else in her own will.
Read More: Louisiana's Succession Law
If You Die Without a Will
If you die without a will, this is “intestate” succession and Louisiana law decides who gets your property. It’s a community property state so the process is a bit more complicated than in some other jurisdictions. Everything you acquire after the date of your marriage, with the exception of inheritances or gifts made solely to you, is community property. Your spouse owns half of this. Everything else, such as property you owned before you got married, is your separate property. If you die without a will, your separate property goes to your children or other relatives. Your spouse has no right to it. But she’s entitled to her half of the community property and she has usufruct to your half of the community property until her death or she remarries, whichever occurs first. She would only receive an outright bequest of your half of community property if you leave no other relatives. If you leave a spouse and children, your children would receive your separate property and naked ownership of your half of the community property. If you have no children but your parents survive you, your spouse would receive all the community property and your parents would inherit your separate property.
Louisiana law also provides for “forced heirs." A forced heir is someone you cannot legally disinherit -- the law forces you to leave him a statutory share in your will, although the bequest is limited to what he would have received if you had died without a will. Your children are forced heirs until they reach the age of 24. If a child is disabled, Louisiana considers him a forced heir regardless of his age, until such time as he recovers or for his lifetime if he doesn’t recover.
Rules for Writing a Will
Louisiana law isn’t all that unique if you leave a will. As in most other states, you must be of sound mind to do so and the will must be printed, not handwritten or oral. The minimum age to write a will is 16, a bit younger than in other states. You must sign at the end of the document, and Louisiana requires that you sign each page as well. If you add any provisions to the will below your signature, it’s left to the discretion of the court whether to honor or ignore them. Louisiana requires that your will be notarized and you’ll need two additional witnesses as well. They must be at least 16 years old, be able to sign their names, and under Louisiana’s statutes, they can’t be blind or insane. If one of your witnesses is also a beneficiary in your will, this won’t invalidate it, but she may not receive the entire bequest you gave her. She’s limited to anything she might have received if you had died without a will.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.