When it comes to estate planning, creating a Last Will and Testament is a crucial step to ensure that your assets are distributed according to your wishes after you pass away.
However, it's all too common for many Louisianians to put off this important task until it's too late. Then, their families are left with the difficult task of guessing what their loved one would have wanted while still coping with the emotional pain of their loss.
The truth is, no one likes to think about their own mortality, and planning for it can feel overwhelming. But the reality is that creating a will is a responsible and necessary step to protect your loved ones and your legacy. So why do so many people put it off, and what happens when you die without a will?
Louisiana's Intestate Laws
In Louisiana, if a person passes away without a valid Last Will and Testament, it’s referred to as an intestate death.
In an intestate death, the deceased person’s estate is handled by intestate succession and their assets are distributed through a set of “default” rules. Under these default succession rules, “community property” and “separate property” are managed differently.
Community Property vs. Separate Property
Louisiana is one of the few US states that makes a distinction between Community Property and Separate Property.
Separate property is property that belongs exclusively to one of two spouses. Unless a property is specifically classified as separate property, property owned by a married person is community property.
Examples of Separate Property
- Property acquired by either spouse before marriage
- Property designated as separate property in a previous marriage
- Property acquired by either spouse through inheritance or donation
Furthermore, even if it is only titled in one spouse’s name, an asset purchased with community funds is still considered community property.
What Happens to Separate Property?
In a Louisiana intestate succession, a deceased person’s separate property is distributed to their children or other descendants.
Here are the two possible scenarios:
- Surviving descendants. Separate property is distributed, first, to a deceased person’s children, each of whom will share the property equally.
- No surviving descendants. If any of the deceased person’s children are also deceased, then the deceased child’s descendants (the grandchildren of the property owner) share equally in their parent’s inherited property.
What Happens to Community Property?
In a Louisiana intestate succession, a deceased person’s community property is distributed to his or her spouse and descendants, depending on the family situation.
Here are the three possible scenarios:
- Surviving descendants and surviving spouse. The ownership of community property goes to the deceased’s children, who will then co-own the property with the surviving spouse. This co-ownership (called usufruct) ends when the surviving spouse either dies or remarries. Then, the property passes fully to the descendants.
- Surviving spouse and no surviving descendants. All community property passes to the surviving spouse.
- Surviving descendants and no surviving spouse. In this situation, there is no community property. The deceased’s children, or their children’s descendants, would inherit everything.
Who Counts As A Descendant?
After the spouse of the deceased accepts their share of the property, the "child's share" is then divided between all descendants. But who counts as a descendant?
Louisiana law recognizes the following children, all of whom may inherit property in an intestate succession, with some exceptions:
- All children born during a marriage
- Biological children born outside of marriage
- Adopted children
- Children placed for adoption
- Children conceived, but not born, before a parent's death
Keep in mind that all children must be legally eligible to receive property.
We’re Here to Help
Whether you're a young adult just starting out in life, a parent with young children, or a retiree looking to protect your assets, it's never too early or too late to create a will and secure your family's future.
The dedicated attorneys at Anderson Traylor Edwards have over 50 years of combined experience representing people in Louisiana. If you are in need of empathetic and experienced counsel, look no further.
Contact us today to schedule your free, no-obligation consultation.