Benjamin Franklin once said: “In this world nothing can be said to be certain except death and taxes.” However, no one likes to think about his or her own mortality, except for when it is time to contemplate who to leave one’s assets to. The media and websites, like legalzoom.com, imply that anyone can make a valid Last Will and Testament (“Will”) directing whom to leave one’s assets to. However, a Will is not a “one size fits all” type of situation, especially in Louisiana.
Louisiana, like in so many other aspects, has unique form requirements for a Will. In Louisiana, only two (2) forms exist for a Will:
- A handwritten Will (legally called an “olographic” Will), and
- A Notarial Will.
A Handwritten Will
A handwritten Will is entirely written, dated, and signed in the handwriting of the testator. “Testator” means the person who is making the Will.
Meeting the requirements of a handwritten Will sounds simple, but getting a Court to declare a handwritten Will is not so simple. A handwritten Will, unlike a Notarial Will, is not self-proving meaning that two (2) people must confirm the handwriting is that of the testator. Multiple other issues can arise with a handwritten Will, like:
- Did the testator declare his or her intent for the document to be his or her Will?
- Is the date sufficient?
- Is the testator’s signature in the right place?
- Was the Will completely written in the handwriting of the testator?
A Notarial Will
A notarial Will is written, dated, and signed by the testator at the end and on each page in the presence of a notary and two witnesses. Meeting the requirements of a notarial Will sounds difficult, but getting a Court to declare an original Notarial Will valid is simple.
If a Will does not meet the specific requirements for a notarial or handwritten Will, the Will is not valid in Louisiana. Do not make the mistake of thinking that a Will printed off the Internet and signed only by you will be valid. In fact, a Will that does not meet Louisiana’s requirements might as well not even exist. When your Will is invalid, your assets will devolve according to Louisiana’s intestacy law. Louisiana’s intestacy law governs who inherits a person’s property when a person dies without a Will.
Unfortunately, even if you follow the specific rules for the form of a handwritten or notarial Will that does not mean that your assets will go to the person to whom you directed. More often than not, we find bequests in a hand written Will that violates Louisiana law or public policy.
Maybe you get the form requirements right and none of your bequests violate public policy, but what if you have a forced heir? A forced heir may throw a wrinkle in who you wish to leave your assets to.
Additionally, in a Last Will and Testament, you can, among other things,:
- Appoint the person to handle your estate;
- Appoint a guardian for your minor child;
- Establish a trust for your minor child.
Avoid your last wishes not being valid, and come see us at Hoyt & Stanford for your Last Will and Testament.
Jena is an Attorney & Counselor at Law whose primary areas of practice are Tax Law and Estate Planning and is located in Lafayette, LA