I’ve looked all over the internet and can’t seem to find anything about this, so I figured someone here might know…
I have a friend of mine who is young, single, and doesn’t have any children. Although she isn’t extremely rich, she does have a nice stash of money saved up and she’s worried that when she dies, it might all go to her parents. She has not spoken to them in years and they have no real relationship. So my question is: is she allowed to exclude them from her will? The laws of succession say that her parents would be first on the list of people who would inherit their daughters money/finances, but I was wondering if they could somehow be excluded and if someone else (like her brother or a nephew) be given those rights? We live in Louisiana, if that makes a difference.
I know nothing about Louisiana law, but my understanding is that, generally speaking, anyone can be disinherited except for a spouse (who has a right to an “elective share.”)
So I would guess that a valid will leaving everything to a particular charity ought to do the trick. Really she should talk to an attorney licensed in Louisiana. I doubt it will cost too much. Most local bar associations will refer you to an attorney who will meet with you for 1/2 hr for $25 or so. Besides, I do know that a will must be done absolutely right or you’re running a serious risk that it will be ineffective. So she’s probably best off going to an attorney anyway. The attorney should be able to definitively answer the question.
To remove doubt, language like “So-and-so takes nothing.” has been used in wills. Otherwise, I agree with lucwarm, especially because Louisiana law can be very different from the other states’.
You know, you don’t always have to go to an attorney for this sort of thing. Most simple will situations can be handled on one’s own, simply by following the forms available in a book in the local Borders/Barnes & Noble/etc. Just make sure that the book is Louisiana specific.
As Mr. Hand observes, you don’t need a lawyer to execute a will. You also don’t need a doctor for a lot of surgical procedures, but it is still probably not a good idea to dope yourself up and start hacking away with a scalpel in one hand and an open textbook in the other.
Given the fact that a will can effect everything you owned, and has permanent effects, it is generally a reasonable idea to get professional advice when drafting one.
Do-it-yourself law books in the estate field are especially notorious for inaccuracies and poor advice. A best-seller from the 70s about avoiding probate, for instance, left thousands upon thousands of people throughout The United States burned.
Louisiana is the odd-man-out with respect to a good deal of American law, having based much of its system on code law rather than the English Common Law tradition. Years ago when a friend of mine enrolled at Tulane Law School, he had to fill out a form advising the university whether he intended to primarily study Louisiana law, or law for the other 49 states.
That said, a previous poster was correct in discussing “elective share” laws. In the absence of a valid prenuptial agreement, the law generally provides that a surviving spouse is entitled to some set minimum share of an estate. This is called the “elective” share because the spouse always has the option of saying they want this statutory minimum rather than whatever was provided for him or her in the will. It is then up to the court to sort out how the other bequests need to be adjusted in order to accomodate this change.
Summing up: a person probably doesn’t have to leave anything to surviving parent. But by all means check with a Louisiana attorney to be sure.
Another simple way is to put your accounts POD so and so. POD = Payable Upon Death. If you have 10,000 in a POD bank account with Joe Schmoe, when you die it becomes Joe’s and is NOT part of your estate.
Lawyers do not charge much to make out a will, so the DIY is taking a ridiculous risk.
IMHO there are a lot of things to worry about in life other than who is going to get your money. This is especially true if the chances are good that they will die first.
I’ve heard of many cases where people have held a grudge, until it was too late. Then they regreted it.
IANAL, but here’s my gonna-be-a-paralegal-soon opinion (this is not legal advice, just a guess based on what I’ve learned):
[QUOTE]
*Originally posted by xanadu * So my question is: is she allowed to exclude them from her will?
Yes. She can leave the money to whoever she wants to. AFAIK no states require you to leave your parents anything in your will. IF she had kids, she MAY be forced by the state to leave her kids a minimum amount (some states make you leave your kids something, some don’t). Were she married, the loot would go to the husband (unless she lived in a state that allows spouses to screw each other in their wills).
** The laws of succession say that her parents would be first on the list of people who would inherit their daughters money/finances**
This is only if she dies intestate (without a will). In that case yeah, her parents would get it, or her brother would if Mom and Dad were dead. If the brother was dead, probably the nephew.
but I was wondering if they could somehow be excluded and if someone else (like her brother or a nephew) be given those rights? We live in Louisiana, if that makes a difference.
Yes. She can leave the cash to her brother. The important thing is that she die with a will. If she doesn’t, her parents WILL get most of it if they’re still alive. (IIRC, if you die without a will the money is going to go to the nearest blood relative after Uncle Sam gets finished shoving his large wooden tax stick up the estate’s ass.)
Your friend needs to see a lawyer, bad. A general no-frills will might cost her $100. (I know many lawyers who won’t charge anything because they feel so strongly about everyone having a will.) Hers may end up costing more because there may be other situations that would require more consideration but it sounds to me as if she can afford it. If she really feels that strongly about Mom and Dad not getting anything from her, a will is the only way to assure that doesn’t happen.
My memory is that Louisiana is the only state in which children, as well as spouses, can claim an elective share. But parents cannot, if she makes a will excluding them.
Yes. As the responses so far make clear, the OP has a fundamental misunderstanding of the purpose of a will. A will allows you to leave your property to whomever you wish (with certain restrictions; viz., in some states you can’t disown your spouse or your kids). As SnoopyFan notes, the rules of succession are the default rules for distribution of property if there is no will.
Anote about form wills: even if the form is correct, that doesn’t mean a will based thereon would be valid. One of the major requirements for a will is that it be executed properly under state law. Execution of a will is hard. It usually requires a number of people who have no interest in the testator’s estate to sign in the presence of each other. Exactly how many and the proper procedure are a matter of state law, and it varies notably from state to state. There are more than a few folks who got a form will out of a book, completed it accurately, and then figured they were in good shape but the will was ultimately held invalid because it was never executed.
Form wills may be very helpful as a first step in helping your friend plan the distribution of her assets, but she needs an attorney to advise her. Wills are tough, and they’re made that way on purpose so that the testator has to take it seriously and so the state can be quite confident that, if a will was made properly, it really does represent the testator’s wishes, because she’s guaranteed to be unavailable to clear up the confusing parts.
–Cliffy
P.S. I am not licensed to practice in your state, I am not expert in this area of the law, and I am by no means conversant enough in the facts of ths case to advise you competently in this matter. You need to speak with an attorney, licensed in your jurisdiction, expert in this substantive legal area, and fully knowledgeable about the facts. I am not your lawyer. You are not my client.
P.S. I am not licensed to practice in your state, I am not expert in this area of the law, and I am by no means conversant enough in the facts of ths case to advise you competently in this matter. You need to speak with an attorney, licensed in your jurisdiction, expert in this substantive legal area, and fully knowledgeable about the facts. I am not your lawyer. You are not my client.
Just FYI, OP, this is the first thing that any law-related student learns in General Law 101: cover your ass. Right, Cliffy?
A good place to look for the proper form for a will for your state is in your state statutes. Some states have included a valid will right in the probate statutes, along with instructions. If you’re not going to go to a lawyer to draw up the will, Google your state statutes and search them for the chapter on probate and estates and see if your state has a statutory will. If it does, you can print it out, fill it out, get it witnessed per the instructions and you’re good to go.
Actually, SnoopyFan, we learn it in our Professional Responsibility class – I think I took mine in my third year.
I didn’t know that wills were included in state statutes, Otto. That’s neat. However, I still suggest that the OP’s friend consult an attorney when trying to execute the will just in case there are any weird crinkles or ambiguities in the statute. While an estates attorney can help you with asset planning, if all you want is to make sure the will you’ve written is valid and properly executed, most estate attorneys can do that cheap. It’s too important to screw up.
If you’re really worried about surviving family laying unfair (or simply undesired) claim to your estate, be sure to include them all with a maximum allocation of $5.[sup]00[/sup]. This will prevent them from contesting a will that has cut them out entirely.
Not quite – they can always contest a will, for any reason at all.
What this does is make it harder for them to contest it, by making it clear to a judge that you did not “forget” them or “assume” that they would die before you. Those are both reasons people have used to contest wills. By including specific mention of them, you take away those reasons.
Since I work in the estate planning area a resident of Louisiana and am familiar with its inheritance laws I’ll provide some insight into this issue.
If you have a will you can dictate to whom and how much of your estate you wish.
Having a will dated after 1999 in Louisiana supercedes any intestate (to die without a will) inheritance codes.
Just because you have a clause of POD on your account does not exclude this account from your estate. For estate tax purposes the POD does not shelter any assets from federal OR state estate and inheritance taxes.
Contesting a will is a costly process which has little chance of success. Unless it can be proven the person produced the will under duress or in “un-reasonable” (meaning mentally impared) state of mind most challenges fail.
Most good estate planning attorneys in Louisiana charge between $200 - $400 for a standard will with some testamentary codiciles. Since it has already been pointed out Louisiana law is unique to the rest of the nation and to attempt to write a will yourself is not a good idea cost is insignificant compared to the benefit.
If the person in question wants to “insure” that a particular individual receives some monentary award free of estate taxes then a life insurance policy should be purchased and owned within an irrevocable trust. The grantor makes regular cash “gifts” to the trust which the trust uses to pay premiums for the insurance. Not only will this guarantee the beneficiary a cash settlement it will essentially leverage the amount of the gifts by as much as a thousand times their value.
The donor gets the bonus of having a tax deductable contribution of the gift and has the use of the remaining principal which wasn’t needed to fund the benefit.
The downside; it is “irrevocable” and cannot be stopped unless the donor stops making gifts to the trust and cash values in the life policy are insufficient to pay future premiums.
To further educate the readership:
A. There are only 11 states which use common law of which Louisiana is one (imagine that).
B. In the state of Arkansas the spouse is EXCLUDED from the deceased estate unless granted a portion through a will.
C. While the Code Napoleon is unique to Louisiana legal system elements of common law are also included in the legal code (refer to A).
If you care enough about who gets your milk crates and PS2 after you die to make up a will, don’t you think it would be prudent to consult a lawyer to make sure it is done correctly?
Obviously, if you don’t care, then don’t bother, and the courts will determine who gets your stuff. But if you DO care, and you have significant assets, isn’t spending a couple hundred bucks worth it? Yes, greedy lawyers. But how do you know the will you scrawled on the back of a napkin is vaild? The only way to find out is to die and have the will challenged in court. Except you’ll be dead and won’t be able to fix things if it turns out the will has some mistake.
So the simple thing is to see a lawyer, pay the money, and know that your wishes will be carried out. If you don’t have the money to pay the lawyer, then you probably don’t have enough assets to make it worthwile to have a will anyway. If you have no dependents then who cares? But if you want your money to go to some charity after you die, then a valid will is a neccesity.
