Can I cut my kids out of my will?

admin  -  Dec 27, 2011  -  , ,  -  Comments Off on Can I cut my kids out of my will?
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From time to time people will ask me if they have to leave something to their children in their will. The answer to that question is identical to the answer of most other legal questions  –  it depends. Louisiana law, unlike any other state in the country, contains inheritance provisions for “forced heirs.” If an individual dies with any descendants who qualify as a forced heir, Louisiana requires that those heirs inherit a certain percentage of the deceased’s estate.

While parents are certainly free to leave forced heirs more than the minimum required under the law they cannot leave less than the statutory minimum termed the “forced portion.” In other words, in Louisianaa person cannot completely write a forced heir out of their will. Under Louisiana law a person’s forced heirs are: 1) any children that they have who have not reached their 24th birthday at the time of the parent’s death; and 2) children of any age who are permanently incapable of taking care of their persons or administering their estates at the time of the decedent’s death due to a physical or mental incapacity.  The legislature has recently amended the forced heirship statute to clarify that forced heirs include “descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.” La. C.C. Art. 1493. This recent amendment will likely expand the number of people who qualify as forced heirs.

The question that arises from time to time is what happens if a person dies with a will that does not leave anything to a forced heir? In those situations the forced heir can file a petition with the court to be recognized as a forced heir. Once the individual is recognized as a forced heir the estate will be required to provide the forced heir with the forced portion of the estate. After providing the forced heir with the forced portion the remainder of the individual’s estate may pass according to the will. To calculate the value of the deceased’s estate the court will look back at any donations or transfers that the deceased made within the three year period prior to their death. This is done to prevent a person from giving away their property prior to their death in order to avoid the forced heirship laws. In the event that the deceased’s estate does not have sufficient assets to pay the forced heir, the forced heir has the power to recover donations made by the deceased in the three years prior to her death, until the forced portion is satisfied.

If you have any questions about how Louisiana law applies to wills or the legal procedure of successions, please feel free to contact me and we can discuss the law and how it may be applicable to your situation.

~ Ashley

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