If You Die in Louisiana Without a Will, Louisiana Has a Plan For Your Property: A Plain English Explanation of Succession Laws

The Coffee Shop Series

There are certain things people put off because they are unpleasant. Going to the dentist. Cleaning out the garage. Figuring out exactly what has been growing in the back of the refrigerator since Easter. And making a will.

I understand the instinct. Nobody wakes up on a Saturday morning, stretches, pours a cup of coffee, and thinks, “You know what would really make today special? Contemplating my own mortality and deciding who gets my stuff.”

So people put it off.

“I’m too young.”

“I don’t own enough.”

“My family knows what I want.”

“My husband will get everything anyway.”

That last one is where Louisiana law occasionally strolls into the room, pulls up a chair, and says, “Well. About that.”

Because if you die without a valid will in Louisiana, your property does not simply float around until your family comes to a reasonable agreement about what you probably would have wanted. Louisiana has intestacy laws. In plain English, that means the State of Louisiana has already created a default estate plan for you.

And Louisiana’s default estate plan does not care that your daughter promised she would let your husband stay in the house. It does not know that you have not spoken to your brother since the Great Thanksgiving Incident of 2017. It does not know that your niece has been the person driving you to every doctor’s appointment for six years while Cousin Eddie appears primarily when somebody dies or has a crawfish boil.

The law has rules.

First, No, Your Spouse Does Not Necessarily “Get Everything”

This is probably the biggest misconception I hear about dying without a will.

Louisiana distinguishes between community property and separate property, and that distinction can completely change what happens when somebody dies.

Generally speaking, community property includes much of what spouses acquire during the marriage. Separate property can include things owned before the marriage, property inherited individually, and property donated individually, among other things.

Now suppose you are married and have children.

When you die, your spouse already owns his or her own one-half interest in the community property. That half was never yours to leave in the first place.

Your half is where things get interesting.

If you die without a will and leave descendants, your descendants inherit your share of the community property, while your surviving spouse generally receives a usufruct over that share. In extremely simplified terms, the children become the naked owners, and the surviving spouse has the right to use and enjoy the property during the usufruct.

If the usufruct exists under Louisiana’s intestacy rules, it generally terminates when the surviving spouse dies or remarries.

Which means we have now managed to put the words “naked,” “usufruct,” “death,” and “remarriage” into one estate-planning conversation.

Welcome to Louisiana.

This is also why “the kids will just let Mama keep the house” is not an estate plan. It is a hope. Hopes are wonderful things. I have several. I do not use them to determine title to real estate.

Separate Property Can Get Even More Interesting

Let’s say you owned land before you got married. Or your parents left you the family property. Or you inherited Grandpa’s forty acres, the old camp, mineral interests, or some other separate property.

You die without a will.

If you have descendants, they generally inherit your separate property.

Not your spouse.

Your children.

That can be exactly what you wanted. Or it can be the precise opposite of what you wanted.

And if you do not have descendants, do not automatically assume your spouse jumps to the front of the line for all of your separate property either. Depending on which relatives survive you, parents, brothers, sisters, and descendants of brothers or sisters may have inheritance rights before a surviving spouse inherits separate property.

Yes.

This means it is entirely possible to be married to someone, die without children, own separate property, and have Louisiana law say, in effect, “Everybody gather around. We need to discuss your in-laws.”

I cannot stress enough that this is not the time you want your surviving spouse discovering the finer points of Louisiana succession law.

Grief is enough. Grief plus a title problem and your brother-in-law owning an interest in something is an unnecessarily ambitious emotional itinerary.

And Louisiana Can Keep Climbing the Family Tree

If there are no descendants, the law begins looking at other relatives according to the order established by the Civil Code.

Parents. Brothers and sisters. Descendants of brothers and sisters. A surviving spouse in certain circumstances. Other ascendants. Other collateral relatives.

Louisiana will keep wandering around the family tree looking for somebody.

This is where succession work occasionally begins resembling genealogy performed under fluorescent courthouse lighting.

“Did your uncle have children?”

“We think so.”

“Where are they?”

“Texas.”

“Do we know their names?”

“One may be named Scooter.”

Excellent. We are making progress.

And yes, if there are ultimately no qualifying blood or adopted relatives and no qualifying surviving spouse, Louisiana law provides for the estate to belong to the state.

That is an extreme situation, but I mention it because people sometimes say, “If you don’t have a will, the State takes your property.”

Usually, no.

The much more realistic problem is not that Louisiana takes your property.

It is that Louisiana decides who does.

“But My Family Knows What I Want.”

I believe you.

That does not make it legally controlling.

Your children may know you wanted the house to go to one child and the land to another. Your spouse may know you wanted her protected for the rest of her life. Everybody may know your grandson was supposed to get your truck.

They may all agree.

Until they don’t.

Or somebody dies before the succession is completed.

Or somebody gets divorced.

Or somebody files bankruptcy.

Or somebody needs money.

Or somebody marries somebody everybody else hates.

Or twenty years pass and the original heirs are now dead and their interests have fractured among another generation of people who vaguely remember visiting the property once when they were nine.

One of the recurring lessons of succession law is that a small ownership problem left alone long enough can reproduce with astonishing efficiency.

A piece of property that could have been dealt with cleanly in one generation can eventually have twelve owners, three deceased owners whose successions were never opened, two people nobody can locate, and one relative who believes he owns the whole thing because he has been cutting the grass.

He does not.

But he is extremely confident.

A Will Is Not Just About Who Gets the Money

This is another reason I wish people would stop thinking wills are only for wealthy people.

Estate planning is about control.

Who gets your property?

When do they get it?

What happens if one of them dies before you?

What protection should your spouse have?

Do you want your spouse to have rights over separate property that Louisiana intestacy law would not automatically provide?

Do you have minor children or forced-heir issues that need to be considered?

Do you have a blended family?

Do you own inherited land?

Do you own a business?

Do you have one responsible child and another child who could lose an inheritance before the funeral potato salad makes it into the refrigerator?

These are not billionaire problems.

These are ordinary Louisiana-family problems.

And Louisiana families have enough characters without adding unnecessary co-ownership.

One More Important Point: Having No Will Does Not Mean Having No Succession

People occasionally think avoiding a will somehow keeps things simple.

It does not.

A will and a succession are two different things.

When someone dies owning property that must pass through a succession, the family may still need a Louisiana succession proceeding so that the heirs can be legally recognized and placed into possession. Dying without a will does not magically transfer a house into somebody else’s name at the courthouse because everyone knows Junior is supposed to get it.

The title still has to get from the deceased person to the legally recognized successor.

Paperwork is remarkably disrespectful of bereavement.

So, Do You Need a Will?

Maybe.

Estate planning is not one-size-fits-all, and a will is not necessarily the only document that matters. Property classification, beneficiary designations, ownership structure, family circumstances, forced heirship, trusts, powers of attorney, and other issues can all affect the right plan.

But there is one very simple question worth asking:

If Louisiana’s default inheritance rules determined exactly what happened to everything you own tomorrow, would you be happy with the result?

If the answer is yes, wonderful.

If the answer is, “Wait. My husband doesn’t automatically get my land?”

Or, “My children would own part of the house?”

Or, “Why are my siblings involved in this?”

Or simply, “Absolutely not,” then that is probably useful information to discover while you are still alive enough to do something about it.

You do not make a will because you are planning to die.

You make an estate plan because you are planning what happens to the people who are still here when you do.

And if you choose not to make that decision yourself, Louisiana is perfectly willing to make it for you.

Louisiana has many wonderful qualities.

Knowing your family well enough to decide who should inherit your property is not one of them.

Judith L. Hampton

Attorney-at-Law

Hampton Law Firm

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If you have questions about wills, estate planning, or what would happen to your property under Louisiana law, visit our Estate Planning resources at HamptonLawLA.com or contact Hampton Law Firm.

Estate planning does not have to be morbid, complicated, or reserved for people with enormous estates. Sometimes it begins with one very practical question: Where does my stuff actually go if I die?