FAQ
Frequently asked questions of Louisiana estate planning .
Q: Do I really need a will?
A: Yes.
Seriously, yes pretty much everyone needs a will.
If you:
own a house
have kids
own a business
are a single parent
are over the age of 18 with a bank account
have inherited property or assets
have sold or want to sell your business
have a pension
Then you definitely need a will.
Q: What happens if I die without a will?
A: If you don’t have a will, Louisiana law will determine where your property goes after you die.
This is called dying intestate.
The default rules may be what you want, but they may not. And if you don’t know what those default rules are or you don’t want the state deciding where your property goes, then you need a will.
Q: What is an executor?
A: An executor is the person who is responsible for gathering all of your property after you die and distributing it to the people named in your will.
Q: What is a power of attorney?
A: A power of attorney is a document that gives someone the power to act on your behalf if you are unable to do so. Now you can give a power of attorney even if you are competent. Probably the most frequently used limited power of attorney is to allow your real estate agent to sign the documents to sell your property if you are out of state.
Q: Why is it so important to have a power of attorney?
A: If you become incapacitated or incompetent, someone will have to go to court and apply to be named your guardian. In Louisiana, this is called an interdiction proceeding and the person named your guardian is called a curator.
A power of attorney allows you to give the power to handle your finances and healthcare to someone else so that you don’t have to go through that interdiction proceeding.
Q: What is probate?
A: Probate is a court supervised process in which your will is presented to the court and the court authorizes your executor to take the actions to gather your property and distribute it to the people named in your will. Or if there isn’t a will, someone will be appointed as an administrator and authorized to gather your property and distribute it as determined under Louisiana law.
Q: What is a trust?
A: A trust is an arrangement in which a person (called the grantor or settlor) gives property to another person (called the trustee) to hold such property and administer and manage it under the terms created in the trust instrument or agreement for the benefit of certain named persons (beneficiary).
In this arrangement, the trustee is a fiduciary, which generally means that the trustee has to act in the best interests of the beneficiaries.
As if that is not complicated enough, a person can hold more than one office (settlor, trustee, beneficiary) at the same time. For example, in a living trust (or revocable trust), the same person is typically the settlor, the trustee and the beneficiary. The purpose of creating the trust will dictate whether the same person can occupy multiple roles.
Q: What is the difference between a will and trust?
A: A will must be probated to pass your property to the people named in your will. The probate process requires judicial oversight.
The trust we are talking about here is a living revocable trust. This is a trust that you put all of your property into a trust before you die and then the property is automatically held in the trust for the benefit of certain individuals and may be distributed out to them depending on the terms of the trust. Also a will can say that certain property of yours goes into trust for the benefit of someone else. This is quite common when the deceased has minor children.
Q: What is a usufruct?
A: A usufruct is one way that property can be held in Louisiana. It divides the property between a usufructuary and a naked owner. The usufructuary has the ability to use the property and get the rent or income from the property for a certain term (usually their lifetime), and at the end of the term, the property automatically passes to the naked owner. It is very similar to a life estate in other states.
Q: What is the difference between probate and non-probate property?
A: Non-probate property is the property that goes directly to a previously designated beneficiary upon someone’s death. Common examples of non-probate property include:
IRAs
401(k)s
Life insurance
Annuities
Assets titled in the name of a trust
The only way this type of property can pass through your will is if you designate your estate as a beneficiary. This is generally not advised because it ties up the property in the probate process.
Probate property is anything other than non-probate property. Probate property passes under the terms of your will after your death. If you don’t have a will, then the property will pass according to your state’s laws of intestacy.
Q: What is forced heirship?
A: Generally, In Louisiana, children under the age of 24 and disabled children regardless of age are forced heirs. As a forced heir, a child is entitled to a certain portion of their parent’s estate.
If a parent dies with one child, a forced heir is entitled to one-fourth of the parent’s probate estate.
If a parent dies with more than one-child, a forced heir is entitled to one-half of the estate divided by the number of children of the parent. So for example:
If there are 2 children, a forced heir is entitled to one-quarter of the probate estate
If there are 3 children, a forced heir is entitled to one-sixth of the probate estate
If there are 4 children, a forced heir is entitled to one-eighth of the probate estate (and so on)
Q: What is collation?
A: This is a Louisiana civil law concept that only applies to gifts made by a parent to forced heirs in the three years before the parent’s death. With collation, that gift would be considered in equalizing the estate among the children.
For example, if parent made a gift of $100K to a forced heir in the year before his death and died with an estate of $200K and 1 other child, then with collation the forced heir would only receive $50K at the parent’s death and the other child would receive $150K. So the forced heir would get $100K as gift and $50K from estate (for a total of $150K), and the other child would get $150K from the estate.
The problem with collation is that most of the time lifetime gifts are meant to be an extra portion to a child and the parents don’t want such gifts to be used to determine how much is distributed from the estate.
Your will dispenses with collation and says that any gifts you give in your lifetime are intended to be as extra portions to the child and not considered in determining distributions from your estate.
Q: But having a will means my estate won’t have to go through probate, right?
A: Nope, that’s not how it works. But if you have a will, the probate process will likely be a lot smoother (and cheaper) because Louisiana allows independent administration. This means that the executor will be able to do a lot of things, like pay bills and administer the estate, without having to go to court and ask the judge for permission every time.
Q: If I have a will, I won’t owe any death taxes, right?
A: Sorry to be the bearer of bad news, but having a will in and of itself will not protect you from death taxes. And by death taxes, I mean federal or state estate or inheritance taxes. But there is good news. First, Louisiana does not have any death taxes. Second, currently the federal estate tax exemption is over $12 million per person. So if you are a single person in Louisiana and die with less than the exemption amount of just over $12 million, no federal death taxes are due. And if you are married, you can essentially have over $24 million of exemption. The estate tax exemption is set to go down to around $6 million in 2026.
Q: I thought I didn’t have estate tax concerns. Why are there estate tax provisions in my will?
A: Here is hoping that you do one day have estate tax concerns (more than $12M or $24M if you are married)! In all seriousness, the estate tax exemption amount has changed significantly since I entered law school. When I was in law school, estates with over $650K in assets were subject to the estate tax. Now that number is over $12M, but it is set to revert to $5M (indexed for inflation in 2026).
Therefore, I do typically provide 3 provisions about estate taxes:
A provision on who will pay the estate tax if any estate tax is due. The default is that the estate tax will be apportioned among people receiving property in proportion to the amount received.
A provision to allow the executor to qualify property for the marital deduction. Married persons can pass property to one another without any estate tax so using this provision would allow estate tax to be deferred until the death of the surviving spouse.
A provision to allow the executor to elect portability or to pass the unused estate tax exemption from the deceased spouse to the surviving spouse. A gift tax return would need to be filed to maintain this exemption.
Q: Is there any property that isn’t affected by my will?
A: Yes, certain non-probate property like the account balances in most retirement plans and life insurance proceeds are not controlled by your will. Rather the person who will receive these types of non-probate property is the person that you named on the beneficiary designation forms. So even if you are doing a will, you need to make sure to look at and if necessary update your beneficiary designation forms.
Q: What is a tutor?
A: In Louisiana, a guardian of a minor child is called a tutor. Parents are natural tutors of their children. The last surviving parent can appoint the person that they wish to serve as tutor of a minor child. This provision is typically found in a will.
Q: What is a curator?
A: In Louisiana, a guardian for an adult that cannot take care of their person or property is called a curator. In other states, a curator is called a conservator. The proceeding to appoint a curator is called interdiction in Louisiana. Signing a durable power of attorney and/or health care power of attorney to appoint an agent typically alleviates the need for a curator. Louisiana law allows a person to nominate the person or persons that they would like to serve as curator if they are unable to take care of themselves, and you will usually see this provision contained in a power of attorney.
Q: What is an interdiction?
An interdiction is when a Louisiana court appoints someone to manage an incompetent or incapacitated adult’s financial or personal affairs. In other states, this can be called a conservatorship or guardianship. The person appointed to care for the incompetent person is called a curator.
A conservatorship is when a court appoints someone to manage a minor or incapacitated person's financial and personal affairs.
The conservator becomes responsible for the minor's finances and can limit spending decisions.
A conservatorship and a guardianship are generally not the same, but one person can serve in both roles.
Guardianship is usually the appointment of a person to oversee the physical and medical care of a person with limited capacity, or a minor.
Q: What is a prohibited substitution?
A: A prohibited substitution is someone (A) giving something to one person (B) in full ownership with a charge at B’s death to deliver the property to a third person (C).
Typically a client (A) might say “I want to leave all of my property in full ownership to my spouse (B) and whatever is left after my spouse dies, I want to go to my children (C).”
This alone would be prohibited substitution and would nullify the entire will. To accomplish the client’s objective of providing for his spouse and then leaving whatever is left to the client’s children, the client could use a trust or even a usufruct.