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Will You or Won't You? 

An expert on Louisiana estate law discusses why most people should consider drafting a will.

So you think you don't need a will?

"I'm single -- my parents would just get my property." "My spouse and kids would automatically be my heirs." "I'm not rich; I don't need one."

Actually, many people who think they don't need a will should think again: Legal experts recommend that anyone who owns assets, no matter how small, should draft a will. If you die "intestate," or without one, the state determines who gets your property and under what conditions -- and those conditions may not be exactly what you had wanted, or what your heirs may need.

"Wills are not just for the wealthy," says Kathryn Venturatos Lorio, a Loyola Law School professor and co-author of Louisiana Succession and Donations: Materials and Cases and Louisiana Civil Law Treatise: Successions and Donations. "All the law has is what [lawmakers] think most people want, based on a traditional family structural theme. You may not have that family structural theme. If that's not what you want, you need a will.

"Anybody who wants to do something different than what we call the default rules, or intestate rules, should consider a will," she says. "Anybody with a big enough estate to be concerned about tax issues might want to consider a will. Anybody who has, perhaps, a disabled child and wants to make accommodations for that child -- or young children, and wants to put things in trust to make sure they're administered in a certain way -- may want to consider a will."

Lorio suggests that those who don't currently have a will, and think they don't need one, read the state's intestate rules to learn exactly how their assets would be distributed and to whom. Many people would be surprised to find the state's guidelines for distributing property might not correspond with their intentions.

Writing a will could, for example, decrease the tax burden on a person's heirs, ensure that all desired recipients receive a share of one's assets, or set guidelines on how property is awarded to minors. "You could make sure the distributions to the kids are over a period of time, so a 16-year-old doesn't get a huge wad all of a sudden," Lorio says. "People should at least educate themselves on what the default rules are, and if they don't want exactly the default rules, it's worth writing something that deviates from them."

In the case of an unmarried person with no children, the estate would go to siblings and parents, or nieces and nephews, Lorio says. "If you have a significant other, that person's not going to be included at all."

If a person writes a legally valid will in another state and moves to Louisiana, the will would be honored here, she says. One exception is Louisiana's "forced heirship" law, a provision in which a certain class of heirs may claim a portion of the estate. Forced heirs include children under 24, mentally or physically handicapped children, and in some cases, grandchildren. The surviving spouse is not a forced heir. If a person writes a will in another state without including forced heirs, they would be taken into account under Louisiana law.

Experts say parents with young children should especially consider it important to write a will, taking all foreseeable future events into account. Property left to a young child is managed by a "tutrix," or guardian, usually the child's other parent. The decedent might want to choose another person to manage the child's inheritance or name a secondary tutrix in the event that the original tutrix dies.

A person can also write survivorship provisions into his or her will, Lorio says. "Let's say I don't have any forced heirs; I want to leave everything to my husband, and he wants to leave everything to me.

"If we're in an accident together and he happens to survive me by five minutes, all my estate would go to him if I wrote such a will. It would then ultimately go to whomever his heirs are. So it could be that all of his family gets my property. Instead, I could write a survivorship provision that says he only gets it if he survives me by six months. That way, my estate would go to my second-choice people instead of his family." While the resources are available for those who want to write a will without the aid of an attorney, Lorio cautions that it's best to have a lawyer give your will at least a once-over. "There is a 'simple form,' where you just write it, date it and sign it with your own hand," she says. "The problem with that, in most of the cases that end up in court later, is [the decedent] didn't know all the substantive rules, which created a problem. So that's why it's best to run it by an attorney."


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