A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.
If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom. Most intestacy statutes distribute a deceased person’s assets between a surviving spouse and their children or to only the children if there is not a spouse. If there are no surviving children the assets then are generally distributed to extended family members.
A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In Louisiana, the laws regarding the valid execution and witnessing of a Will are set forth in the Louisiana Civil Code, Articles 1577 through 1582.1.
In Louisiana there is not a required statutory age or mental capacity to execute a Will.
A Will must be in writing, signed at the end by the testator, by two witnesses and a notary. (See: Art. 1577)
In Louisiana a person cannot be a witness to a Will if he is insane, blind, under the age of sixteen, or unable to sign his name. A person who is competent but deaf or unable to read cannot be a witness to a Will. (See Art. 1581)
Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not a beneficiary of the Will. In Louisiana, the signing of a Will by an interested witness, or their spouse, does not invalidate the Will. However, unless the Will is witnessed by two disinterested witnesses a gift to an interested witness is void. An exception is if the interested witness is an heir and would be a beneficiary of the testator’s estate if the testator had died intestate. Then the interested witness may take the gift up to the value of their intestate share of the estate. (See: Section 394.210)
Currently Louisiana does not provide for a self-proving Will.