Louisiana estate attorney

Don't Handwrite Changes on Your Last Will and Testament

I've seen many people over the years want to make changes to their existing last will and testament. Without knowing any better, they pull out their existing will, grab pen or pencil, and cross through the things they want to change while writing in replacement provisions.

For example, someone may want to change their executor. They feel that the previous executor they named (let's call him "Joe") is now a bum, and they want to replace Joe with Fred.

Or, let's say a Will provides a specific bequest either to an individual or charity of $100,000. But the testator now wants to change that bequest to $5,000.

There are a couple of Louisiana laws that are in play here. First, Louisiana law provides, in pertinent part, that a revocation of a testamentary provision occurs when the testator clearly revokes the provision or legacy by a signed writing on the testament itself.

So, the Louisiana rules are somewhat relaxed to permit the revocation of a provision in a last will by a signed writing that is not dated but which clearly revokes the provision.

However, regarding a replacement provision, the formalities are more stringent. Louisiana law provides that, "Any other modification of a testament must be in one of the forms prescribed for testaments.

Example: A woman pulls out her old will naming Joe as the executor. She scratches through Joe's name, writes in Fred's name, and signs the change. The result would be that Joe is no longer the executor because she revoked the provision by a signed writing, but Fred will not be the executor, because this modification is not in one of the forms prescribed for testaments - it does not meet the formality requirements of an olographic testament because it is not dated.

Be very careful when you attempt to change your Will. Your safest bet is to work with an attorney who understands the rules as they relate to revocations and modifications of testaments.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais

Louisiana Estate Planning Attorney

www.RabalaisEstatePlanning.com

Phone: (225) 329-2450

The Louisiana Usufruct: Who is Liable for Repairs?

This post describes who is liable for repairs when someone owns the usufruct of property, while others are naked owners.

It's common in Louisiana for a spouse to leave their surviving spouse the usufruct of property. Here's an example: Wife and Husband marry, each for the second time. They each have children from their prior marriages. Wife owns the home they live in. Wife doesn't want Husband to be homeless if she predeceases him, so she writes a will and leaves Husband the lifetime usufruct of her home, and she names her children (Husband's step-children) as the naked owners of her home.

Wife dies. Husband and Wife's children somehow cooperate enough to complete the Succession. Husband is now living in the home. And let's say the home is 40 years old and in need of constant repair. Who is responsible for these repairs. The usufructuary? The naked owners?

There are several Louisiana laws that address liability for repairs in these circumstances. The general rule is that the usufructuary is responsible for ordinary maintenance and repairs, while the naked owner is responsible for extraordinary repairs, unless the usufructuary's fault or neglect cause the extraordinary repairs to become necessary.

Extraordinary repairs are those for the reconstruction of the whole or a substantial part of the property subject to usufruct. All others are ordinary repairs. As you might imagine, usufructaries will argue that all repairs are extraordinary. Naked owners will argue that all repairs are ordinary. 

During the existence of the usufruct, a naked owner can compel the usufuctuary to make the repairs for which the usufructuary is responsible. 

But the usufructuary may not compel the naked owner to make the extraordinary repairs for which the naked owner is responsible. And if the naked owner refuses to make these extraordinary repairs, the usufructuary may do so, and the usufructuary shall be reimbursed without interest by the naked owner at the end of the usufruct.

If, in the above example, the usufruct does not end until the death of the usufructuary, then the usufructuary's estate will likely seek this reimbursement from the naked owners after the usufructuary dies.

In addition, there are even more rules that address when, for example, a usufructuary abandons his usufruct, or when property has been totally destroyed through accident, but this post should give the basic information you may be looking for regarding the liability for repairs.

Make sure you address these things the right way on the front end so they don't became a disaster on the back end. Work with the right estate planning attorney who will listen to your objectives and suggest the best ways for you to leave a legacy behind - instead of a mess that winds up in court.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450