Coffee Shop Series: You Died. Now Who Gets Your Stuff?

Coffee Shop: You Died. Now Who Gets Your Stuff?

The Extremely Plain-English Difference Between Dying With a Will and Without One in Louisiana

There are certain phrases lawyers use that make perfectly normal concepts sound like you need three degrees, a Latin dictionary, and access to a dark wood-paneled library to understand them. “Testate succession” and “intestate succession” are two of those phrases. So forget both of them for a minute. Here is the Coffee Shop version: if you die with a valid will, you left Louisiana instructions. If you die without a valid will, Louisiana already wrote some instructions for you. That is the basic difference. Unfortunately, Louisiana’s instructions may bear absolutely no resemblance to what you would have chosen yourself.

If You Die With a Will

Suppose you have a valid Louisiana will. Congratulations. You have accomplished something many otherwise responsible adults continue postponing because apparently contemplating mortality for forty-five minutes is more terrifying than leaving your family to untangle your property while simultaneously planning your funeral and trying to remember who ordered the sandwich tray.

A will gives you the ability, within the limits of Louisiana law, to decide what you want to happen to your property after you die. Louisiana still has rules. You cannot necessarily write whatever you want on the back of a Winn-Dixie receipt at 11:47 p.m. and declare the matter handled. Louisiana currently recognizes two forms of testaments, olographic and notarial, and each has legal requirements that have to be satisfied. Louisiana also has forced-heirship rules that can apply in certain circumstances. But the important Coffee Shop point is that a valid will gives you substantially more control over who receives your property than simply dying and letting Louisiana’s default inheritance laws take over.

You can decide that you want a particular person to receive the house, another person to receive certain personal property, or that your estate should be divided in a particular way. You can make plans for situations involving blended families, children, grandchildren, unmarried partners, stepchildren, or property that has special meaning to you. You can even make sure Cousin Earl does not receive the riding lawn mower because Cousin Earl knows exactly what he did in 2014 and we are apparently carrying that grudge all the way to the grave.

That is really the point of having a will. It gives you a voice in the conversation that happens after you are no longer physically present to participate in it.

If You Die Without a Will

Now we get to the fun part.

If you die without a valid will, your property does not become ownerless. Louisiana does not back a government truck into your driveway and start loading up your television. Instead, Louisiana has already created an inheritance plan for you. Lawyers call that “intestate succession.” Normal people can call it “Louisiana deciding who gets your stuff because you didn’t.”

Louisiana Civil Code Article 880 establishes the basic rule. When someone dies without a valid testamentary disposition covering the property, the property passes by operation of law to certain relatives and, in some circumstances, a surviving spouse according to the order established by Louisiana law. In other words, Louisiana has already written a backup estate plan for every person in this state.

Louisiana does not ask what you probably wanted. Louisiana does not interview your best friend. Louisiana does not care what you announced at Thanksgiving dinner for fifteen consecutive years. Louisiana does not consider the fact that everybody in Union Parish knows your daughter was supposed to get Mawmaw’s ring. Louisiana applies the law.

And the law wins.

“But I’m Married. My Spouse Gets Everything, Right?”

Please pull up a chair.

This sentence has probably kept a respectable number of members of the Louisiana State Bar Association busy over the years.

Being married does not automatically mean your surviving spouse inherits everything you own when you die without a will. One of the first things that matters is whether the property is community property or separate property, because Louisiana treats those categories differently.

If a married person dies without a will and leaves descendants, the surviving spouse already owns his or her own share of the community property. The deceased spouse’s share goes to the descendants, while the surviving spouse generally receives a usufruct over the deceased spouse’s share of the community property. Under Louisiana Civil Code Article 890, that usufruct generally terminates when the surviving spouse dies or remarries.

Translated from Louisiana into English: the children may own the deceased parent’s portion of the property, while the surviving spouse has the legal right to use and enjoy it for a period of time.

And now you have met the word “usufruct.”

We are not going farther down that hole today because this is Coffee Shop, not Advanced Louisiana Property Law With Judith, and I would like everyone to finish the article.

If the deceased spouse leaves no descendants, Louisiana Civil Code Article 889 provides that the surviving spouse succeeds to the deceased spouse’s share of the community property. So whether there are children makes an enormous difference.

Separate property is another adventure entirely. If someone dies without descendants, separate property may pass to parents, brothers and sisters, descendants of brothers and sisters, or eventually a surviving spouse depending upon exactly which relatives survive the deceased. For example, Civil Code Article 891 provides that when there are no descendants but there are surviving parents and siblings or descendants of siblings, the siblings or their descendants inherit the separate property subject to a usufruct in favor of the surviving parent or parents. A surviving spouse does not move to the front of the separate-property line merely because there was a marriage. Under Article 894, the surviving spouse succeeds to the separate property only when the deceased leaves no descendants, parents, siblings, or descendants of siblings.

So if your entire estate plan presently consists of, “I’m married. My husband or wife will get everything,” I would like you to worry just a tiny bit.

Productively.

“Everybody Knows What I Want.”

This is another one I hear constantly.

Everybody knowing what you want is remarkably less useful after your death than people seem to think it is.

Your daughter saying, “Mama always said I could have the house,” is not the same thing as Mama legally leaving her the house. Your brother saying, “He told me I could have the truck,” does not magically transfer title to the truck. Your family gathering around the kitchen table after the funeral and taking a democratic vote on what they believe you meant is also not one of Louisiana’s recognized forms of estate planning.

Louisiana has formal rules governing testaments. Those rules matter. Your intentions can be perfectly clear to everyone who ever knew you and still fail to produce the legal result you expected if those intentions were never put into a legally effective form.

There is a difference between everybody knowing what you wanted and the law being able to carry out what you wanted.

Unfortunately, death is a terrible time to discover the difference.

“What About My Boyfriend or Girlfriend?”

This one can get ugly very quickly.

If you have lived with someone for fifteen years, share a house, share expenses, share dogs, share a Costco membership, and have matching bathrobes, Louisiana does not quietly decide that you are basically married and slide that person into the surviving-spouse category.

Louisiana’s intestate succession rules identify descendants, ascendants, collateral relatives by blood or adoption, and a qualifying surviving spouse. An unmarried romantic partner does not become an intestate heir merely because the relationship was long-term and everybody considered you a family.

That does not mean an unmarried partner can never receive property. Property may already be jointly owned. Some assets may pass through beneficiary designations or other mechanisms. A valid will can also leave property to someone who would not otherwise inherit under Louisiana’s intestate rules, subject, of course, to other applicable Louisiana law.

It means you should never assume Louisiana will automatically treat your unmarried partner like a spouse after you die.

Louisiana will not.

“What About My Stepchildren?”

This can be another awful surprise because families and statutes do not always define “family” the same way.

You may have raised a stepchild from the age of two. That person may call you Mom or Dad. You may consider that child every bit as much yours as a biological child. Emotionally, there may be absolutely no distinction in your family.

Legally, however, Louisiana’s intestate succession rules deal with relationships by blood or adoption. A stepchild who has not been legally adopted does not simply become your descendant for intestate inheritance purposes because you loved and raised that child.

That is one of the reasons blended families should be especially cautious about relying on Louisiana’s default plan.

Families are complicated.

Statutes are not sentimental.

“Fine. I Have a Will. That Means My Family Avoids a Succession, Right?”

No.

This is probably the other enormous misconception.

A will and a succession are not opposites. Having a will does not necessarily eliminate the need for a Louisiana succession proceeding. The will provides instructions concerning the disposition of your estate. The succession is the legal process through which those issues are handled after death.

Think of it this way: the succession is the trip. The will is the set of directions you left behind.

Without a will, Louisiana hands everybody its own map.

With a will, you had an opportunity to draw yours.

There are circumstances in which particular property can pass outside of a full succession proceeding, and Louisiana also has procedures that may simplify certain estates, so not every death produces exactly the same process. But simply signing a will does not make the courthouse evaporate in a puff of smoke.

So What Is the Actual Difference?

The biggest difference between dying with a will and dying without one is not whether Louisiana has rules. Louisiana is going to have rules either way.

The difference is how much say you had in the outcome.

If you die with a valid will, Louisiana generally begins with the legally effective instructions you left, subject to Louisiana law. If you die without one, Louisiana begins with its own default inheritance scheme.

And sometimes Louisiana’s plan is perfectly fine. Maybe the intestate rules produce exactly the result you would have selected yourself. Wonderful. You and the Louisiana Civil Code are in complete agreement, which is not an achievement everyone can claim.

But maybe you have a blended family. Maybe you own separate property. Maybe you have children from a prior relationship. Maybe you have an unmarried long-term partner. Maybe there is a stepchild you consider your own. Maybe one child needs additional protection. Maybe you own property with tremendous sentimental value. Maybe there is one particular person in your family tree whom you would sooner leave your riding lawn mower to a raccoon than allow to inherit it.

Those are things worth finding out while you are alive and still capable of doing something about them.

Dying without a will does not mean there is no estate plan.

It means Louisiana wrote it for you.

The only real question is whether you like what Louisiana wrote.

If you have questions about wills, estate planning, or what happens to property after someone dies in Louisiana, Hampton Law Firm can help you understand how Louisiana law applies to your family and your property before everyone is standing around the kitchen table arguing about what you “always said.”

Judith L. Hampton

Attorney-at-Law

Hampton Law Firm

hamptonlawla.com

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This article is intended for general educational information about Louisiana law and is not legal advice for any specific person or situation.