Is There a Statute to Probate a Will in Louisiana?

By Teo Spengler

Like many states, Louisiana requires most wills to pass through probate before an estate is distributed. The court-supervised process, termed "succession proceeding" in Louisiana, is intended to ensure that estate assets are distributed according to the terms of the testator's will. Louisiana statutes are premised on French law, so some terms of the probate code differ significantly from those of other states. The statutes governing probate law and procedures are found in the Louisiana Code of Civil Procedure, or CPP, and in the Civil Code, or CC.

Like many states, Louisiana requires most wills to pass through probate before an estate is distributed. The court-supervised process, termed "succession proceeding" in Louisiana, is intended to ensure that estate assets are distributed according to the terms of the testator's will. Louisiana statutes are premised on French law, so some terms of the probate code differ significantly from those of other states. The statutes governing probate law and procedures are found in the Louisiana Code of Civil Procedure, or CPP, and in the Civil Code, or CC.

Olographic Wills

Louisiana CC 1575 and CCP 2883 validate handwritten wills, called "olographic" wills, known in most other states as "holographic." To be valid, an olographic will must be entirely written in the testator's handwriting and dated and signed by the will maker. No witnesses need to sign an olographic will, but the court must hear testimony from two competent witnesses establishing the testator wrote the document and intended it to be her will.

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Nuncupative Wills

In Louisiana, at least three adults must witness the signature of a typed or printed will, known as a "nuncupative testament by private act" or a "notarial testament." Before the will signing, the testator acknowledges to the witnesses that the document is her will, and at the probate hearing after the testator's death, each witness testifies that the document was signed in his presence and the signature belongs to the testator. In most other states, the term "nuncupative" denotes an oral will, but Louisiana does not recognize such wills.

Wills Probated Outside Louisiana

Louisiana statutes permit property located in the state to pass under wills probated outside the state. Under CC 2421 to 2424, such a will can be recorded in any parish where the testator has assets. The executor of the out-of-state will opens Louisiana probate by filing a copy of the out-of-state probate document along with a petition for probate. The same is true for wills made in jurisdictions that do not require probate proceedings, if properly authenticated by written proof.

Mystic Will

Louisiana is the only state permitting the "mystic" will, a document the testator prepares and signs in secret. The testator delivers the will in a sealed envelope to a notary public. The notary -- observed by at least three witnesses -- notes the event details on the outside of the envelope, which is then signed by the notary and witnesses. Under CCP 2885, the court requires the testimony of at least three of the witnesses to prove the will is valid.

Succession Proceeding

Pursuant to CCP 2851 and 2852, any person having an interest in a will may open the succession proceeding by filing a petition and submitting proof of death and a copy of the will to the parish court where the deceased last resided. The court will not admit a will to probate unless the petition is filed within five years after the judicial opening of the succession. Anyone objecting to the will may file an opposition to the petition. In that case, the court sets a date for a "contradictory trial," where supporters of the will must prove it is genuine and complies with state law.

Executor

A testator often names in the will the person she wishes to administer the estate. The executor is charged with undertaking all duties necessary to move the estate through succession, including locating heirs, collecting assets and paying debts. Executors must act with scrupulous honesty in all will matters and avoid self-dealing. If the testator fails to name an executor, the court appoints a "dative testamentary executor" to undertake the responsibilities pursuant to CCP 3083. If the testator dies without a will, the court appoints an administrator of an intestate succession.

Intestate Succession

If the testator died without a valid will, her property is divided among family members according to the laws of intestate succession. A spouse is automatically entitled to one-half of the community property assets of the estate; the remainder generally goes to children of the deceased. Under CCP 3001, if all heirs are competent and in agreement, the court may pass the property directly to the heirs, unless excessive debt exists and a creditor demands security before the court transfers ownership of estate property.

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Do I Have to File a Will Through Probate?

References

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Are Wills Public Information?

State statutes protect a will from the prying eyes of the public until a testator dies. During her lifetime, the testator can amend or revoke the will freely and confidentially as her circumstances change. Upon the testator's death, the latest version of her will moves to probate court for administration. The minute the will becomes a court document, it also becomes public information that's open to public viewing.

What Is a Legal Will in Texas?

A legal will in Texas is one that satisfies the requirements of the Texas Probate Code, especially sections 57 to 71. These Texas statutes describe who can make a will, what can be done with a will and the process for making a will valid. A will can be revoked under Texas law by the creation of a subsequent valid will or codicil, or by the testator destroying the physical copies of the will. And, though not required, a will can be deposited with the clerk of the testator's county of residence for safekeeping during his lifetime.

Dying Without a Will in Georgia

As in most states, if you die without a will in Georgia, or make an invalid will, your assets will be distributed according to state law. This is known as leaving an intestate estate, and Georgia probate laws determine which surviving heirs will inherit your assets. Residents of Georgia can prevent intestate estates by leaving valid wills that adhere to the state's probate laws.

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