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It is estimated that almost 70% of individuals in the United States pass away without a will. The problem with this is, if you die and do not have a will, you lose all control of who inherits your estate. Additionally, your estate can be subject to costly but unnecessary estate taxes as a result. This can create a significant and expensive issue for your loved ones.

So why are more people not creating a will? Because many wrongly assume that wills are too expensive or take forever to draft. However, both of these assumptions are not only wrong but prevent millions of people from taking a necessary and crucial step in their estate planning. Creating a will in Louisiana does not have to be difficult, and with help from Stephenson, Chávarri & Dawson, L.L.C., we can make sure that the process is that much easier.

Two Types of Wills in Louisiana

Under Louisiana’s current laws, there are two forms of valid wills: the olographic testament (i.e., holographic testament in other states) and notarial testament. For either of these wills to be accurate, they must be made by the testator and meet the following criteria:

  • Meet the legal requirements of Louisiana.
  • Meet the specific requirements of the state where the testator was domiciled at their death, or when the will was executed.
  • Meet the specific requirements of the state’s statutes where the will was executed at the time the will was executed (other than Louisiana).
  • If the will involves real estate, it must meet the requirements of the state’s laws where the real estate is located.

Notarial Testament Requirements

Five different forms can be used to create a notarial testament under the Louisiana Code. What form you use will depend on the mental and physical condition of the testator.

Consider the following conditions:

  • A form when the testator knows how to read and sign their name and can physically do both.
  • A form when the testator can read but is physically unable to sign their name.
  • A form when the testator cannot read.
  • A form when the testator is blind but knows how to read braille and is physically able to do so.
  • A form when the testator has been legally declared physically deaf or blind and deaf but can read sign language, visual English, or braille.

Generally, most wills fall under the first category, where the testator knows how to read and sign their name. As a result, the testator must also complete the following actions to have a valid will.

  • Sign at the end of the document.
  • Sign on each page of the will.
  • Sign all the documents in the presence of a notary and two competent witnesses, and
  • Declare to the notary and the two competent witnesses that the instrument is their testament.

The Witness Attestation Clause

Additionally, to complete a notarial testament, the two witnesses and the notary also need to sign a statement, while the notary, the testator, and the two witnesses are together. This statement confirms that all the testamentary formalities have been followed. Failure to include this clause in the testament invalidates the will.

According to Louisiana law, this statement needs to be in the following form:

“In our presence, the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____day of _________, ____.”

Do not confuse the witness attestation clause with a testator attestation clause, which is also required in a will. The testator attestation clause is a statement placed before the testator’s signature and explains how the will was witnessed and signed. Going over all of these formalities with an experienced estate planning attorney can help ensure that you complete each step of this process accurately and include all the necessary information.

Olographic Testament Requirements

In Louisiana, an olographic testament is a will that is entirely written, signed, and dated in the testator’s handwriting. Yet, even though the rules tend to seem more relaxed than those of a notarial testament. The document still must show the testator’s intent that they meant for the document to serve as their last will.

The requirements for an olographic will include the following:

  • Handwritten: The entire testament must be in the handwriting of the testator. Problems arise when these wills contain material that is partially handwritten and partially typed. In situations where this occurs, the court will look at only the handwritten portion and figure out if it meets the olographic testament requirements.
  • Dated: There needs to be a clear date that appears somewhere in the will. The date is sufficiently indicated if the month, day, and year are reasonably discoverable from the information stated in the will.  If it is not clear, the court will have to look at other evidence to figure out the date.
  • Signed: Even though the testator must sign their name at the end of the will. If anything is documented below the signature line, it does not mean that the will is invalidated. Instead, it is up to the court to figure out if the additional language is part of the will.

How Can Stephenson, Chávarri & Dawson, L.L.C., Help You With Your Will?

At Stephenson, Chávarri & Dawson, LLC, our legal team can take care of your will’s legal details. We know that many people are hesitant to take on the process because they fear it will take forever or be overly complicated. However, our estate lawyers have many years of experience in wills, successions, and estate planning, and we know how to comply with all the procedural requirements.

  • Save Time and Energy: When you work with our firm, we can handle all the complex tasks of preparing your will, making sure it is crafted accurately—saving you a whole lot of time and energy in the process.
  • Do the Research; With laws changing every day, the process may seem quite challenging. However, our firm can take care of all of this research for you. We can look into the IRS regulations, federal regulations, and Louisiana rules and verify that your will is up-to-date,
  • Help You Save More Money: We can do more than just prepare you with a will. Our team can look into your whole estate, figuring out how we can get you additional financial benefits and tax breaks.

Do not struggle over a bunch of legal forms, hoping your will is prepared correctly. Instead, contact Stephenson, Chávarri & Dawson, L.L.C. today, or call our law office at 504-523-6496. Let us get you the legal help that you need.

 

 

Sources:

You need a will — even if you’re not ‘rich.’(2019). By Bill Bischoff. MarketWatch

There are a lot of celebrity trends that are fun to emulate: the latest fashions, for example. You may avidly follow the latest celebrity gossip or try your hand at some of the makeup or hair trends that the most popular celebrities are sporting.

There’s one trend, however, that savvy individuals definitely want to avoid: neglecting your will prior to your death.

It’s not a new trend, either. For years, celebrities have ignored the potential pitfalls of not having a will or not updating it. Jimi Hendrix and Bob Marley both died without wills. In other cases, like Albert C. Barnes, the celebrity’s wishes are blatantly ignored as their heirs moved forward with estate management.

You don’t want that happen to you! Instead, make sure you know what you need to do in order to keep your will current, and make sure you keep it up-to-date. Maybe you don’t have a celeb-worthy estate. Perhaps you don’t worry about what will happen to your possessions once you’re no longer here to enjoy them–and no one wants to spend too much time dwelling on the possibility of their own death. There are several key reasons you may want to make sure that your will remains up-to-date and that you’re prepared for whatever comes after your death.

1. You want to know what will happen to your children.

Do you have minor children?

If you have minor children, who do you want to take custody of them after your death?

How do you want to handle your finances and the funds that you leave behind for your children, especially if they still have many years before they reach adulthood?

You may have a celebrity-worthy list of divorces in your past, or it might just be you and the kids. No matter what your marriage history looks like, however, you want to make sure that you properly provide for your children in the event that they lose you. Carefully consider who you want to take custody of your children if something happens to you and your spouse. If you’re no longer married to your children’s other parent, you may want to be especially careful in making provision for your children. Do you want to set up a trust that the children cannot access until they reach a certain age? Do you want to make sure that whoever raises your children has funds to maintain their current standard of living?

Your will helps establish what you want to happen to your children in the event of your death. While you cannot lay it out perfectly, you can go a long way toward improving their future by writing it out in the will. Without that provision, you may leave your children at the mercy of a judge who does not know them or you–and who will have no idea what your wishes might be.

2. You want to make sure that your wishes are adhered to if you cannot make your own medical decisions.

If you become incapacitated in some way and cannot make medical decisions for yourself, what do you want? Do you want your family to take all possible measures to prolong your life, or do you prefer that they take only minimal measures? If something happens and you cannot make those decisions for yourself, who do you want to make them?

For many families, the person you want to make those decisions is not your spouse. You may have a specific child or loved one who is more likely to adhere to your wishes than another, or you may know that one child will suffer much more guilt if they have to make a difficult decision related to your medical care. A living will can help set out what you want to happen and who you want to make those decisions–and ensure that people listen to what you want.

3. Your will can help prevent arguments after your death.

All too many families face serious arguments after the death of a loved one. One family member might adamantly believe that he deserves the bulk of the estate. Another might think that it should come to her, regardless of what anyone else wants. Only rarely do family members settle on a fair and equitable division of property after the loss of a loved one, especially if that loved one had substantial resources.

Your will can help avoid those arguments. While it might not stop your children from arguing over specific heirlooms or make it easy for them to decide how to manage their shares in the home they grew up in, it can help set out what you intend to happen with all of your possessions. The more clearly you designate what you want to happen after your death, the more arguments you can help avoid.

4. You want to avoid the problems associated with an outdated will.

Neglecting your will does not necessarily mean that you do not have one at all. It can also mean that you have not kept yours up-to-date based on your current circumstances. Consider:

Did you recently go through a divorce? You may want to make sure that your spouse no longer has any right to your property.

Did you recently get married? You may want to make sure that your new spouse has access to the assets that you share.

Have you had children since you last updated your will? You may want to change your heirs to reflect changes in your family status.

Did you lose a loved one you have named as a beneficiary of your will, or even as a guardian to your children? You need to make changes to ensure that your will still reflects your current needs.

A will serves a critical document after your death, ensuring that your loved ones follow your guidelines for how to handle your property and your other wishes at the end of your life. If you neglect it, however, it may no longer reflect your current needs. If you need to update your will, contact Stephenson, Chavarri & Dawson, L.L.C. at 504-523-6496 today.

Following a divorce, you may need to make many changes in your life. Your income changes. Your residence may change. You may need to change your child custody arrangements.

Do you need to change your will and other estate planning documents, too?

In short: you should always review any binding legal documents following a divorce, since the way you want to deal with them may change substantially. Consider these documents that you may want to revisit.

Child Custody Arrangements

You may have plans for what happens to your children if you and your former spouse both die. Do those plans change now that you have divorced? Carefully consider how you want to manage any child custody arrangements. Keep in mind that you may need to work with your former spouse. Generally, the child’s other parent will get full custody if something happens to you; however, you may want to make arrangements that will allow visitation for grandparents, for example. You may also want to have another discussion with your former spouse about what you would like to happen to the children if both of you pass away. If either of you remarries, you may want to visit these documents again.

Your Will

What happens to your possessions after your death? A joint will, put together before your divorce, may have assigned those assets to the individuals both you and your spouse wanted to include. Your will may also have clearly stated that your spouse would receive all property and all of your assets if you died first. You certainly want to revisit that document after your divorce, since you may have very different plans for your assets once you no longer need to take your former spouse into consideration. Even if you did not name your former spouse directly in the will, assuming that community property would continue to belong to them in the event of your death, you may want to reconsider who will receive your finances and other assets after your death. Did you name a beneficiary in your former spouse’s family? Do you want to change that information based on your divorce?

Carefully revisit your will after any major life events to ensure that it still reflects your wishes. Keep in mind that if you do not change your will, the executor of your estate may end up following the instructions laid out in your current will, even if it no longer reflects your circumstances or the individuals you wish to benefit in the event of your death.

Your Living Trust

Have you set assets up as a living trust to create an easier transition of ownership in the event of your death? You may have created a living trust intended to streamline settling your estate after your death. Ownership may transfer easily to your direct heirs. If you named your spouse on that living trust, you may want to remove them.

Handling an Inheritance for Minor Children

If you have minor children who will receive your assets in the case of your death, you may want to carefully consider how you want to set up their inheritance. Depending on how and when your children will take possession of those assets, if you die before your former spouse, he or she may end up with control of those assets until your children reach the age of adulthood. You may want to set up a trust for your children that will remain closed until they can manage it for themselves. Some parents do not allow minor children to take command of their inheritance until they reach 18, 21, or even 25, when they are more likely to make positive financial decisions.

Medical Power of Attorney and End-of-Life Instructions

A medical power of attorney designates who you want to make medical decisions for you if you cannot make them for yourself. Most married couples assume that their spouse will automatically have the right to make those decisions. However, if you set forth a medical power of attorney that specifically named your spouse, you may want to consider who you now want to make medical decisions on your behalf if you cannot make them for yourself. You may also want to consider who you currently have named as your medical power of attorney if you chose a family member or friend of your former spouse.

You may also want to consider any end-of-life directives you left behind in your legal instructions, particularly if your spouse influenced those decisions. For example, if your spouse preferred to take all possible measures to keep you alive, but you prefer that doctors not use extraordinary measures to prolong your life, you might want to change that directive after your divorce. Review those documents carefully to ensure that they reflect your current desires.

Your Life Insurance Policies

Most people, when they take out a life insurance policy, name their spouse as the primary beneficiary. If you die, your life insurance policy will pay out to the beneficiary named in your policy—even if you have since divorced your spouse. In addition to the other legal paperwork you may want to revisit following your divorce, you should carefully examine your life insurance policy, whether private or employer-sponsored. Who benefits in the event of your death? You may want to name your children rather than your spouse. If you fear that your spouse will mismanage those funds even if they go to your children, you may want to set them up to pay into a trust set aside for your children. You may also choose to name an outside beneficiary. On the other hand, you may want to name your spouse as the beneficiary even after your divorce if your spouse will continue to provide care for your minor children and will need those funds to ensure that your children have what they need. Consult your attorney to learn more about your legal options.

After a divorce, you have many considerations you must keep in mind, including the legal paperwork. If you need to revisit your estate planning needs, including your will, your medical power of attorney, and any other planning documents, Stephenson, Chavarri & Dawson, L.L.C., can help. Contact us today at 504-523-6496 to change your legal documents or to learn more about what changes you need to make following your divorce.

With so much uncertainty right now, it is natural for people to consider getting their affairs in order, specifically making sure their loved ones are taken care of, and their assets are protected. Even though estate planning should be a top priority at any time, with the world battling COVID-19, it is more important than ever to settle your accounts during these unprecedented times.

Our legal team at Stephenson, Chávarri & Dawson understands that this challenging time has brought with it many worries and as a result, a high number of last-minute Wills.  That is why we have made it a point to help families and individuals in Louisiana finalize their estate planning needs while ensuring that each gets the professionalism, experience, and turnaround time that they want. In this blog post, we will explain in more detail what estate documents you should be considering right now and how COVID-19 has brought some significant changes to Louisiana’s estate planning rules.

What Estate Planning Documents Do You Need?

What’s great about estate planning, is it can be as detailed as you want it to be.  However, our law firm recommends that, at a minimum, the following estate planning documents should be created.

  • Wills or a Trust
  • Healthcare Power of Attorney
  • Durable Power of Attorney
  • Health Care Directives or a Living Will
  • Guardianship Designation (if you have a child)
  • HIPAA Authorization

Wills

A Will is a legal document whose primary purpose is to express a person’s desires of how their property will be allocated upon their death and which individual will manage the property until it is distributed. In addition, a Will may also legally specify certain provisions ensuring that their partner receives all of their possessions. During this COVID-19 emergency, certain aspects of creating a valid Will have changed in Louisiana, and it is important to understand these updates:

Does Louisiana require the Will to be witnessed?

Yes, the best practice is to sign your Will with two witnesses. However, the state also allows a Holographic Will to be admitted into probate court. A Holographic Will is an alternative to a Will produced by a lawyer, and it is handwritten and signed by the Will maker without witnesses.

Does Louisiana require the Will to be notarized?

Yes, a notary is required unless the Will is Holographic. A notarization is extremely beneficial to show that the Will is legally valid.

Does Louisiana allow for remote witnesses and/or a notary?

In general, Louisiana does not allow for remote witnesses and or a remote notary. However, due to the COVID-19 emergency, the state has issued the  Executive Proclamation 37 JBE 2020 which provides for remote notarizations in certain situations and when the following elements are met:

  • The individual creating the Will, any witnesses, and the Notary has to be able to communicate simultaneously by sound and sight through an electronic device or process at the time of the notarization.
  • The Notary has reasonably identified the individual creating the Will.
  • The Notary or an agent of the Notary has to create an audiovisual recording of the notarization. This recording must be retained for a period of at least ten years from the date of execution unless the Louisiana law states otherwise.
  • The individual creating the Will, any witnesses, and the Notary must affix their digital signature to the act in a way that makes any subsequent changes or modifications apparent.
  • This waiver for physical presence cannot be used when notarizing trust instruments, testaments, donations inter vivos, matrimonial agreements, or specific acts modifying, waiving, or extinguishing an obligation of final spousal support and authentic acts.

Trusts

A trust is a three-party fiduciary relationship where the first party, the settlor, or the trustor, transfers their property on to the second party for the benefit of a third party, or the beneficiary. These trusts are created to provide legal protection for the trustor’s assets and make sure they are distributed according to their wishes. Trusts not only help save time and reduce paperwork but in some instances, they can even minimize estate taxes. Some important legal aspects to consider when creating a trust include:

Does Louisiana Require a Trust to be Notarized?

In Louisiana, notarization of trust is only required if transferring real property. And even though the Executive Proclamation 37 JBE 2020 has allowed remote notarization in certain situations (as indicated above), it, unfortunately, does not apply to executing a trust. According to the proclamation, trusts are part of the exception and cannot be created using remote notarization.

Healthcare Power of Attorney

Another important legal document that you should consider is the Power of Attorney for Health Care. As this virus continues to spread, it has resulted in many people becoming critically ill and many others dying. That is why it is so vital to have this document in place right now as hospitals will usually look to your specific designee in your Power of Attorney to take control of your health care if you cannot do so yourself.

As you can see from the information listed above, there are many specifics that come into play with an estate plan, and we have only begun skimming the surface. If you are considering an estate plan, it is crucial to discuss these documents with a knowledgeable estate planning attorney. These lawyers can go over your individual goals of what you want to accomplish with your estate plan and help you carry out these particular desires.

Why Call Stephenson, Chávarri & Dawson, LLC?

When it comes to issues involving taking care of your family and loved ones, we know that they need to be handled with the utmost vigilance, respect, and dedication.  With over 50 years of combined experience, the legal team at Stephenson, Chávarri & Dawson have served the diverse legal needs of countless individual clients, families, and businesses, ensuring that each gets the attention and the representation they deserve.

With all that is unknown right now, do not let the stress of not having things in order get you down. Instead, if you are looking to create your own estate plan, contact us through our website or give us a call at 504-523-6496 to schedule a consultation with one of our experienced lawyers.

 

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