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One of Louisiana’s most particular, and misunderstood, laws is a concept known as “forced heirship.” In simple terms, it prevents young and/or disabled children from being disinherited by their parents. Under this law, parents are required to leave a portion of your estate to certain children, regardless of their personal wishes.

Who are Forced Heirs?

In order to qualify as a forced heir, the child must be a biological or legally adopted child of the deceased, not a grandchild, niece or nephew, or step-child (unless legally adopted), and fit one of these two categories:

1. Children under 24: Any child under the age of 24 at the time of the decedent’s passing. Note that this does not mean “minor” children, as the age of majority in Louisiana is 18.
2. Children of Any Age with Disabilities: Any child, regardless of age, that has a mental or physical disability that renders them permanently incapable of caring for themselves, as of the time of the decedent’s passing.

What Portion of the Estate Must Go to Forced Heirs?

The portion of the estate that must be left to forced heirs depends on the number of forced heirs you have:

1. One Forced Heir: If you have one forced heir, they are entitled to 25% of your estate.
2. Two or More Forced Heirs: If you have two or more forced heirs, they are collectively entitled to equal shares of 50% of your estate. For example, if you have 2 forced heirs, they would each be entitled to 25% of your estate; but if you have 5 forced heirs, they would each be entitled to 10% of your estate.

Can You Disinherit a Child in Louisiana?

You may only disinherit a child in Louisiana by executing a will, in one of the following circumstances:

1. If the child has physically attacked the parent, if he or she has actually struck the parent. A mere threat is not sufficient.
2. If the child is guilty of cruel treatment of the parent, inflicting grievous injury against a parent, or any other crime for which the parent was a victim. This does not require a conviction, but may need to be proven if the disinherison is challenged.
3. If the child has attempted to take the life of the parent.
4. If the child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death.
5. If the child has used any act of violence or coercion to hinder the parent from making a testament.
6. If a minor child gets married without the consent of the parent.
7. If the child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death.
8. If the child has failed to communicate with the parent without just cause, for a period of two years, after the child turned 18 and knew how to contact the parent. This does not apply if the child was on active duty in any of the military forces of the United States at the time.

For any of these conditions, the law requires clear and convincing evidence for disinheritance to be upheld in court. It is important to consult with an attorney so that you can preserve the necessary proof of any such disinherison along with your will.

Planning Your Estate with Forced Heirship in Mind

Given the constraints of forced heirship, it’s crucial to approach estate planning with careful consideration and legal guidance. Here are some steps you can take:

1. Consult with an Estate Planning Attorney: An attorney who specializes in Louisiana estate law can help you understand your obligations under forced heirship and develop a strategy that aligns with your wishes while complying with the law.

2. Consider Alternatives: While you may not be able to completely disinherit a forced heir, you can still control how the rest of your estate is distributed. You might consider setting up trusts, making donations, or using life insurance policies to manage the distribution of your assets.

3. Document Your Wishes Clearly: Ensure your Last Will and Testament is clear, detailed, and legally sound. Any attempts to disinherit a forced heir must be explicitly stated and supported by evidence.

4. Discuss with Your Family: Open communication with your family about your estate plans can help manage expectations and reduce potential conflicts after your passing.

Conclusion

In Louisiana, the concept of forced heirship can significantly impact your estate plan. While the law aims to protect vulnerable heirs, it also places constraints on your testamentary freedom. However, with careful planning and the guidance of an experienced attorney, you can navigate these complexities and create an estate plan that honors your wishes and complies with Louisiana law.

If you have questions or need assistance with your estate planning, don’t hesitate to reach out to the attorneys at Ciolino & Onstott at any time. Taking the time to plan thoughtfully now can provide peace of mind for you and your loved ones in the future.

Losing a loved one is one of life's most challenging experiences, and dealing with legal matters in the midst of grief can be overwhelming. One important step is ensuring that you and your loved ones’ have wills, and that those wills are valid under Louisiana law. If a will fails to meet any of the legal requirements, even slightly, it will be entirely invalidated, so it is extremely important that all formalities are strictly followed.

This blog will describe common errors in Louisiana wills that cause them to be thrown out. However, this is not a complete list, and it is no replacement for consulting with an attorney to avoid any legal pitfalls. Ciolino & Onstott offers a free consultation to examine the validity of your will, and we encourage you to call us if you have any doubts about the validity of your will, or the will of a loved one.

Key Requirements for a Valid Will in Louisiana

Louisiana law sets out specific requirements that must be met for a Last Will and Testament to be considered valid. Here are the essential criteria:

1. Form of the Will

Louisiana recognizes two primary forms of wills: olographic (handwritten) and notarial (typed and witnessed).

• Olographic Will: This must be entirely written, dated, and signed by the testator (the person making the will). The date must include the day, month, and year, and the testator's signature should be on each page of the will, and at the end of the will. Anything type-written will be entirely ignored. If the exclusion of type-written portions causes the will to lack an essential element, then the will is entirely void.
• Notarial Will: This must be typed or printed and executed and dated in front of a notary and two competent witnesses. The testator must declare that the document is their will, and then sign it in the presence of the notary and witnesses. The notary and witnesses must also sign the will in the presence of the testator and each other. The will must be signed on each page and contain a proper attestation clause from the notary. Neither the notary nor the witnesses may stand to inherit from the will, or be married to anyone who stands to inherit from the will. The will submitted to the court must be an original with pen-and-ink signatures from the testator, notary, and two witnesses. A will is presumed to be revoked if its original cannot be produced; and although it is sometimes possible to overcome this presumption, it is complicated, costly, and not guaranteed.

2. Capacity of the Testator

The testator must be of sound body and mind at the time of making the will. This means they must be able to understand the nature of their actions and the contents of the will. This means that the testator must be at least 16 years old, not blind or deaf, not mentally incapacitated, and  able to read and sign their own name. However, so long as a person has the mental capacity to understand the terms of their will and the consequences of signing it, there are special forms which may be used if the testator is deaf, blind, incapable of reading, or incapable of signing their own name. Standard forms will not be valid if the testator suffered from any of these conditions at the time that they signed the will.

3. Voluntariness

The will must be made voluntarily, without undue influence, duress, or coercion. If there is any indication that the testator was pressured or manipulated into making the will, its validity can be challenged. While invalidating a will on these grounds is rare, conflicts between heirs alleging coercion or fraud are unfortunately common, particularly when one heir assisted the deceased in preparing their estate plan and that heir is receiving a large inheritance. The best practice is to encourage your loved ones to get an estate plan complete, but to avoid involvement in the estate planning process, when possible. If your loved one requires your assistance to complete the process, communicate openly and honestly with the family, and ensure that your attorney is qualified and experienced to assist you with this delicate issue.

Common Issues Affecting Validity

Even if a will appears to meet the basic requirements, certain issues can affect its validity:

1. Improper Execution

For notarial wills, any failure to follow the formalities—such as signing on every page in the presence of the required witnesses and notary—can render the will invalid. Similarly, for olographic wills, type-written portions, lack of signatures, unclear language, or missing or incorrect dates can pose problems.

2. Improper Form

If the deceased suffered from any physical or mental infirmity at the time the will was signed, then very specific forms must be used. If those forms are not properly used, then the will may be challenged.

3. Lost Wills/Revocation

A will can be revoked by the testator at any time before their death. This can be done by creating a new will, destroying the old one, or making a formal declaration of revocation. If a newer will is found, the older one might be invalidated. If an original will cannot be located, it is presumed to be destroyed and revoked. These issues can cause substantial difficulties in the succession process, and may lead to the will being invalidated altogether.

Why You Should Consult with an Attorney

While understanding these basics is important, the intricacies of Louisiana succession law make it crucial to consult with an experienced attorney. Here’s why:

1. Legal Expertise: An attorney can verify the validity of the will based on Louisiana's specific legal requirements and ensure that all formalities were properly observed.
2. Avoiding Mistakes: Simple mistakes can lead to significant legal issues. An attorney can help identify and rectify any errors or omissions that could affect the will’s validity.
3. Handling Disputes: If there are any disputes among heirs or questions about the will’s authenticity, an attorney can provide the necessary legal representation and mediation to resolve these issues.
4. Comprehensive Guidance: The succession process involves more than just validating a will. An attorney can assist with the entire probate process, including the identification and valuation of assets, payment of debts, and distribution of the estate.

Final Thoughts

Determining the validity of a Last Will and Testament under Louisiana law involves understanding and meeting specific legal requirements. While this guide provides an overview, the best course of action is to consult with an experienced attorney who can provide expert advice and support. An attorney can ensure that the will is valid, guide you through the succession process, and help alleviate the stress during this challenging time. If you have any doubts or questions, don’t hesitate to reach out to a qualified attorney to help you navigate these complex legal waters.

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Navigating the succession process after the loss of a loved one can be overwhelming, but with the guidance of an experienced attorney, it becomes more manageable. At Ciolino & Onstott, we help you understand the terms of the will, secure assets, handle debts, and complete the legal steps necessary to distribute inheritances. Our goal is to make the process as smooth and efficient as possible, giving you peace of mind during a challenging time.

1. Initial Consult with Your Attorney

If your loved one has a will, we will review it with you and explain its terms. In addition to directing who will receive their property, your loved one may have left other important instructions and information, such as burial wishes, and who should be their legal representative for handling their affairs. If your loved one does not have a will, then we will explain how your loved one’s estate will be handled under Louisiana’s intestate succession laws. We will also go over any information you have about the deceased’s assets and debts, and make a plan to complete the succession process as quickly and easily as possible.

2. Investigate and Secure Assets

After our meeting, we will want to inform banks and financial institutions of your spouse’s passing. You may need to update account ownership, close accounts, or retitle assets. Many of these tasks may not be possible until the succession is opened in the court, but it is still important to contact these institutions to protect the accounts from unauthorized withdrawals and confirm the existence of these assets for later. You should also understand that in Louisiana, unlike most states, joint accounts generally do not pass to the surviving account holder automatically, so joint account holders should not be using the funds in the account until the succession process is properly completed. We will also work with you to investigate if your loved one left any other assets, and take appropriate steps to protect them until the succession process is complete.

3. Handle Debts and Creditors

We will then investigate debts, notify creditors of your spouse’s death, and work with them to settle any outstanding debt. This might involve paying off loans, negotiating payment plans, or liquidating the deceased’s assets to pay the debt. We will provide guidance to you and your family on managing these obligations to protect your financial health.

4. Complete the Necessary Legal Processes

We will then file necessary pleadings to open, administer, and close the succession. At the end of the succession, the deceased’s affairs will be wound up, and judgments proving you and other heirs’ ownership of their inheritance will be issued. The particulars of this process vary widely from case to case, and can be extremely complicated. As your attorneys, it is our job to find these answers and help your family navigate the process, so you do not have to worry about it!

5. Put the Heirs Into Possession

When the steps above are complete, you will be ready to take possession of your own inheritance along with your loved one’s other’ heirs. We know that waiting on an inheritance can cause significant stress, so we strive to distribute inheritances as soon as possible; however it is impossible to give a timeline on when this will be done. In some cases, this can be within weeks of your initial consult, and in others it may take many months. Sometimes, certain heirs can be given their inheritances early in the process while others must wait much longer. Your attorney can usually advise you about what timeline to expect at your initial meeting. The goal is to take as much time as needed to complete the process properly, but no more!

6. Update Estate Documents

Finally, if you have an estate plan, especially if it was a joint plan with your spouse, now is the time to update your will, powers of attorney, and other relevant documents. If you do not have an estate plan, this is a very good time to have one done. Your recent experience with the succession process will give you important insight into how you would like your own affairs handled. It is important to take advantage of this experience and create a plan while this experience is fresh in your mind. We are happy to talk to you about these options as well.

Final Thoughts

The succession process can be very complicated and time-consuming, but with proper planning and assistance from qualified professionals, like the attorneys at Ciolino & Onstott, you can get to the finish line as quickly and painlessly as possible.

Losing a loved one is a profoundly emotional experience, and finding an attorney that you can trust to help you manage and settle their estate can be very stressful. However, hiring the right attorney can make the process faster, easier, and less stressful for you and your family. Here are a few tips to keep in mind as you look for legal support during this difficult time.

Understanding Succession in Louisiana

Before diving into how to choose an attorney, it’s helpful to understand what a succession entails. In Louisiana, succession (known as probate in other states) is the process of passing on a deceased person's property to their heirs, including collecting their assets, paying debts, and then transferring the remaining property to the heirs according to the law, or their Will. Often, but not always, the succession process requires an interested party (such as an heir or creditor) to open a succession proceeding in a Louisiana state court and appoint themselves (or someone else) as the representative of the estate. After that, the representative will gather all of the deceased’s assets (including collecting any debts owed to them), then settle any debts owed by the deceased. Once the estate is debt-free, the representative will distribute the remaining assets to the heirs according to the deceased’s will, or according to the law if there is no will. Once the debts are paid and the assets are fully distributed, the representative will need to file appropriate documents to close the succession. In some cases, this process is so simple that it can be completed within a few hours; however, successions with complicating factors, such as estate tax issues, conflicts between heirs, creditors attempting to collect unjust debts from the estate, or needing to sell real estate or other assets, may take months or even years to complete.

Why You Need an Attorney for Succession

While it’s possible to handle a succession in Louisiana without an attorney, it’s generally not advisable due to the complexity of the law and the cost, delay, and legal risks which can result from making seemingly small mistakes at any point during the process. An experienced succession attorney can:

• Help you determine the fastest and easiest way to complete the succession
• Help identify, gather, and value the deceased’s assets
• Help identify the decedent’s proper heirs, as well as advise on their rights and obligations
• Help you understand the law, including your loved one’s will, trust, or other estate planning documents 
• Draft and file the necessary documents with the court, ensuring that all legal requirements are met
• Negotiate with creditors and/or challenge their debts at court 
• Help you communicate complicated and difficult legal issues with your family, the heirs, and other interested parties
• Help manage and sell assets to pay debts and fairly distribute inheritances
• Provide peace of mind during a challenging time by making sure that your loved one’s estate is safe, and the legal process is moving forward, while the family takes time to grieve.

Steps to Choose the Right Succession Attorney

1. Seek Recommendations and Do Research

The best place to start looking for an attorney is by asking for recommendations from friends, family, or financial advisors who have been through the succession process. Personal referrals can be invaluable. Additionally, research online to find attorneys specializing in succession law in Louisiana. Look at their websites, read client testimonials, and check their credentials.

2. Investigate Experience and Expertise

Once you have a list of recommendations, you will want to do some more research on each of them to ensure that they have specific experience in handling successions. Louisiana’s legal system is unique, and there are a lot of intricacies to the succession process. It is important to choose an attorney with a solid background in succession law who will be equipped to navigate any possible nuances in your case. Check each of the attorneys’ websites and reviews to confirm that successions are one of their regular practice areas, and that they have a reasonable amount of experience. Sometimes it is not possible to find much information about an attorney on the internet, this is not necessarily a red flag, but it does mean you should explore the topic more thoroughly when you meet with them.

3. Schedule Consultations and Gather Information

Most attorneys offer an initial consultation, often free of charge. This consultation is an opportunity for you to get to know the attorney better and gauge their suitability. These consultations are your best opportunity to judge the attorney’s experience, communication, compassion, and suitability to you and your case before you hire them. You should also search through the deceased’s files and records and gather any wills, bank statements, title documents, bills and other documents related to the decedent’s assets and debts. Make note of any missing information so that you can ask your attorney if they are able to help you locate it later. 

4. Prepare and Attend Your Consultations  

In order to have a productive first meeting, you should prepare by gathering and reviewing all information about the deceased and their estate, as mentioned above, so that you can identify areas of concern, and are ready to provide as much information as the attorney may request. The first few minutes of the consultation usually involve introductions and a brief discussion of the facts of the case and primary concerns. The attorney may ask some questions for more information in order to properly evaluate your case, estimate costs and timelines, and so forth. There are a few important topics that you should keep in mind during this conversation, and you should be prepared to explore them if they do not come up naturally:

• First, you want an attorney who is knowledgeable and experienced with cases like yours. You may already have information about this, if you were able to find it through web searches in step 2. Nonetheless, you should still ask one or two general questions about the law and the process to confirm their experience and ability to communicate about the topic clearly. If you are dealing with any special problems, such as a disputed will, conflicts between heirs, time concerns, or a large or complicated estate, you should disclose those facts or concerns early in the conversation and ask about the attorney’s experience with and capacity to resolve those issues. For example, if time is of the essence in your succession, then you’ll want to tell the attorney about your pressing time concerns and confirm that they are available and capable of completing the process on time. If you are dealing with challenges to a will, or conflicts between heirs, you should confirm that the attorney has experience litigating disputed successions and ask how they have resolved similar disputes in the past. However, you should avoid asking for specific legal advice on your case. It is difficult, and in many cases unethical, for an attorney to give legal advice to a potential client during a free initial consultation. You should not hold it against them if they refuse to answer a question that asks for legal advice, but they should be able to answer general questions about the law, or explain how they have handled similar issues in the past, to demonstrate their experience and understanding. 
• A good attorney should not only be knowledgeable but also communicative and compassionate. Pay attention to how responsive your attorney and their staff are to your calls and emails before, during, and after the consult. Are they easy to get a hold of? Do they communicate information clearly? Are they attentive, understanding, and willing to answer your questions? Do you feel comfortable talking to them? Successions can be long, stressful, and emotionally difficult. You may also need to discuss difficult or unpleasant facts with your attorney so that they can properly advise you. It is important that you trust your attorney, feel that they are accessible to you, and that you feel comfortable communicating with them openly about any topics that may come up.
• Understanding the attorney’s fee structure is crucial to avoid any surprises. Attorneys may charge a flat fee, hourly rate, or a combination of both. Ask for an estimate of the total cost and inquire about any additional expenses that may arise. Make sure you are comfortable with their billing practices and that they fit within your budget.
• Finally, you should also make sure that the attorney’s typical practices suit your preferences. Ask about how you will be able to ask them questions, schedule meetings, share documents, and how your case will be managed in general. Most of these issues will not be deal-breakers, but may help you select an attorney who is a better fit for you amongst similarly qualified candidates.

Based on your priorities and preferences, you should prepare a list of questions to ask during the consultations to cover your most important concerns, such as:

• How many years have you practiced succession law in Louisiana?
• Can you explain the succession process and timeline?
• Have you handled cases like mine before?
• How do you handle disputes among heirs?
• What is your availability for calls and meetings?
• Do you prefer to communicate by phone, email, or in-person?
• Does your firm offer/require any special software for me to communicate with you or keep track of my case?
• If something happens to you, is there someone at your firm that can continue my case?
• What are your fees and billing practices? 

Make notes about their answers to those questions so that you can review them later. Keep in mind that free consults are often 30 minutes or less, and it will take some time for you to  explain the facts of your case so you should focus on asking direct questions about the topics that you care about the most before you run out of time.

Making the Decision

After meeting with potential attorneys and gathering all necessary information, take some time to reflect on your options. Choose the attorney who not only has the right experience and expertise but also makes you feel supported and understood. Remember, this is someone who will guide you through an emotionally difficult time in your life.

Final Thoughts

Choosing the right attorney to open a succession in Louisiana is a crucial step in ensuring the process goes smoothly and in accordance with the law. By taking the time to find an experienced, compassionate, and communicative attorney, you can ease some of the burdens during this difficult period. Your peace of mind and the respectful handling of your loved one’s estate are paramount. Ciolino & Onstott has years of experience providing compassionate legal support and representation for families throughout Louisiana dealing with the loss of a loved one. When you are ready, we hope that you call us, or use the link above, to schedule a free consultation about how we can help you and your loved ones through this challenging time.