Wills – Most Common Mistake

Most common mistake in self preparation of will

In 65+ years of combined experience, the most common mistake we see is a person typing their own will, then signing, then having the signature notarized.

Unless a will like that meets the specific Louisiana requirements, this type of will is invalid.  Generally, when we have seen these self-created, or internet obtained form wills, they do not meet the  Louisiana requirements.

An invalid will most likely means that the laws of the State of Louisiana will govern the disposition of the deceased’s assets.  Of course, if everyone agrees to what was in the invalid will, we have strategies to make help assist in the succession process.  But, if one heir refuses to agree, then the entire process can become an involved, drawn out, and expensive legal proceeding that will cost much more than if the will would have been prepared in valid form.

Note:  Louisiana law has been exceedingly clear that the form required by law must be followed exactly, or the testament will be declared invalid.

To know the Louisiana law, consider the following:

Louisiana provides for two types of valid wills (or “testament” is the legal word for it):

  1. Olographic
  2. Notarial

Olographic:  Louisiana Civil Code Art. 1575 provides in part that, “An olographic testament is one entirely written, dated, and signed in the handwriting of the testator.”  Think of a piece of notebook paper with handwriting on it from the person who has died.  Yes, this is completely valid as long as it includes all of the necessary requirements.

Notarial:  Louisiana Civil Code Art. 1577 provides,

Requirements of form

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner.  If the testator knows how to sign his name and to read and is physically able to do both, then:

(1)  In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2)  In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar:  “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 _________, ____.”

Only these two forms are even considered for validation in Louisiana.  And, either form may seem simple, but the details have caused many wills to be tossed by a court resulting in the Louisiana intestate succession law to govern the succession.  (Intestate means the deceased died without a last will and testament.  Even if there was a last will and testament prepared, if it is invalid, then the state treats that last will and testament as if it never existed.)

This is serious!

If you want a valid testament declaring your final wishes for transferring your assets to your loved ones, trust Jane and Scott to help you along the way.

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