NBI Seminars

Joseph M. Placer, Jr., LL.M. [email protected] Placer Law Firm, L.L.C. 337-237-2530

WILL DRAFTING AND RELATED ISSUES December 12, 2017

“As used herein, unless the context clearly indicates otherwise, the masculine gender may include both feminine and neuter genders, words used in the singular may include the plural, or the plural may be read as the singular...” - important in a will, and applicable to these materials.

A. Initial advice to the client.

Contrary to what most clients expect us to say, the simple fact is that not everyone needs a will. The first task of the estate planning attorney, therefore, is to determine whether a will is appropriate for the client. After you have determined that your client does need a will as part of his estate plan, you must then convince him of the need. Most people (attorneys being high on this list) do not want to do anything that requires them to face their own mortality. A client, even after accepting the need intellectually, will tend to put off the drafting or execution of his will indefinitely unless you can overcome this resistance. This is where the “counselor” portion of the phrase “Attorney and Counselor at Law” comes into play. Your client needs legal counseling to help him to overcome an emotional obstacle.

PLACER LAW FIRM, L.L.C. PAGE 1 WILL DRAFTING AND RELATED ISSUES 12/12/2017 QUESTIONS FOR CLIENT: “If you and (client’s spouse) die in a car accident on the way home from this meeting, what happens?”

“Who takes custody of your children?”

“Who manages their inheritance(s)?”

Take the time to explain fully and clearly to client the possible pitfalls of poor or inadequate estate planning, including the consequences of dying without a will. Detail what will happen to his estate under intestate law, including the care and custody of his children, the devolution of his property interests and any taxes, etc. that may arise using real examples from his current situation. Warn him that, even if the current laws of intestacy provide a satisfactory result, these laws can and do change. In intestate successions, the law in effect at the time of death controls the succession. A will, on the other hand, is the client’s (usually only) chance to “write the law” (within limits). A properly drafted will tailors the client’s succession to his needs and desires; it also ensures that his estate, children, business(es), etc. are cared for by persons trusted and chosen by the client. Although these persons (executors, trustees, curators, tutors, etc.) can of course decline to serve, they will have the first option to serve if they survive the client. Finally, as to the validity of a will provision, the law in effect at the time the will is executed controls. If, after being presented with the full facts and with all foreseeable consequences of dying without a will, the client still wishes to forego or “put off for a while” the drafting of a will, ease off. In the case of a client who is set against a will there is nothing you can do - remember, in many cases a will is not really necessary! Where a client acknowledges the need to write a will but cannot seem to commit to having one drafted, note your file and offer to “check

PLACER LAW FIRM, L.L.C. PAGE 2 WILL DRAFTING AND RELATED ISSUES 12/12/2017 with” the client in 6 months. If the client agrees, send a short letter (do not call on the telephone). If he does not want to be reminded, you have done all that you can, and with the letter your file will reflect that.

B. Checklist for gathering client information.

In properly drafting a client’s will, you should provide therein for all reasonably foreseeable situations. This is to say that the will should provide for (additional) children, a change in assets (character or mix) and predeceased or unwilling fiduciaries. Further, the depth and complexity of the will depends largely on the client’s individual circumstances. The best way to make sure you have gathered all information necessary to draft the best will possible for your client is to ask lots of questions. While a client may think some necessary questions far fetched or inapplicable, it is more aggravating to the client (and embarrassing to the attorney) to later discover an asset or situation left out of the will which requires the client to execute a later codicil or the attorney to redraft the entire document. Resist the temptation to make a will as simple as possible just to make it “cheap” for the client. While you certainly want to avoid an unnecessarily complex and expensive document, you also want to be sure the will covers the client’s needs sufficiently and that the client will have no need to redraft or amend the will in the future (absent a significant change in circumstances). The best way to gather the necessary information is NOT to rely on your or the client’s memory. Use a checklist. Include on that checklist everything you can think of that may be needed or should be addressed in a will. Where possible, send a simplified version of your checklist or a “thought list” to the client in advance to get him thinking about executors, trustees, etc. in advance - it will

PLACER LAW FIRM, L.L.C. PAGE 3 WILL DRAFTING AND RELATED ISSUES 12/12/2017 save a lot of time in the long run.

Sample pre-meeting “thought list” for clients:

1. Who do you want to control the administration of your estate (i.e., the executor)? If more than one (i.e., co-executors), do you want one to be able to act alone? If an executor or co-executor dies or does not want to serve, who should replace him or her?

ADVICE: Ask prospective executor(s) if they will serve before finalizing will. Most married people wish the surviving spouse to serve in this capacity.

2. Do you have or could you have at death minor children? If so, who should have custody (assume your spouse dies before or with you)? Should their inheritance(s) be in trust? Who should be trustee? If you want co-trustees, should one be able to act alone? If a trustee or co-trustee dies or does not want to serve, who should replace him or her?

ADVICE: Ask prospective trustee(s) if they will serve before finalizing will. Most married people wish the surviving spouse to serve in this capacity.

3. For property left to your spouse, is outright ownership important or just the right to use and/or sell the property?

4. Are there any items or amounts that you wish to leave to specific persons? How is this answer different depending on whether you are survived by your spouse and/or children?

5. Do you want to leave any part of your estate to a charitable organization?

6. What is the full, maiden name of each of your children? What is the exact date of birth of each child? Include ALL children, whether legitimate or illegitimate, alive or dead, in this list.

7. Do you have any children or grandchildren who are disabled, either

PLACER LAW FIRM, L.L.C. PAGE 4 WILL DRAFTING AND RELATED ISSUES 12/12/2017 mentally or physically? Any who have an inherited, incurable disease which could in the future render them disabled, either mentally or physically?

8. Who should inherit the bulk and/or residue of your estate? What if he/she/they die before you?

9. Please have the full, birth name of all people to be named in the will, both legatees and fiduciaries (executors, trustees, etc.).

10. Do you want to limit the accessibility of any legacy (use a trust)? If you want to limit when a child or other person receives his or her inheritance, at what age or ages do you want the property released (for example: 1/3 at age 25, another 1/3 at age 30 and the final 1/3 at age 35)?

11. What is the approximate value and composition of your estate? Your spouse’s estate?

NOTE: Louisiana community property laws apply to all assets acquired during marriage regardless of the name in which such assets are registered. If an asset such as an investment property, automobile, home or camp was purchased during marriage it is most likely a community asset.

It is not necessary to know the name and exact value of each asset of a client for will drafting; it IS necessary to know the general value of each type of asset and the approximate value and composition of the estate as a whole. A client with less that $200K in assets, consisting of a home and a checking account, who has only one child, will need a much different will than one who has $3 million spread out in several pieces of immovable property, stock accounts, etc. and has three unacknowledged illegitimate children in addition to the two by his current marriage. Types of assets which are dealt with in a will include movable and immovable property as well community interests in non-probate assets; these

PLACER LAW FIRM, L.L.C. PAGE 5 WILL DRAFTING AND RELATED ISSUES 12/12/2017 assets may be owned outright, they may be partial interests or in trust, etc. If the will is to contain a trust, your “will checklist” should incorporate your “trust checklist.” You will want to get the full, birth names of anyone to be mentioned in the will as well as of the successors to all appointments, etc. Further information to be incorporated into the checklist can be gleaned from the following sections. Use information gathered from the client to determine the form and complexity of the will. At this early stage it is also possible to determine whether you will need assistance to complete the will or if you should refer the client to a specialist before becoming too deeply involved in the project.

A sample checklist is provided at the end of these materials.

C. Designating fiduciaries.

Impress upon your client the need to choose fiduciaries who can be trusted and who can best serve their needs. Choosing a sibling or in-law to “keep the peace” can be disastrous if the chosen fiduciary mismanages the trust/estate or fails to perform. Care must be taken in selecting executors and trustees and in setting limits on their authority. Under Louisiana Code of Civil Procedure Article 3097, “Disqualifications,” no person may be confirmed as testamentary executor who is:

1. Under eighteen years of age;

- Self-explanatory, however: clients may want to name a child as successor executor even though the child is under age at the time the will is executed. Make sure in this case that the client is aware the child could not serve before his or her eighteenth birthday - the

PLACER LAW FIRM, L.L.C. PAGE 6 WILL DRAFTING AND RELATED ISSUES 12/12/2017 client may wish to designate an additional successor executor.

2. Interdicted, or who, on contradictory hearing, is proved to be mentally incompetent;

- Self-explanatory; unlikely to come up.

3. A convicted felon, under the laws of the United States or of any state or territory thereof;

- Clients may wish for a relative (especially a son or daughter) to serve and not want to mention to you that the relative has “done time.”

4. A nonresident of the state who has not appointed a resident agent for the service of process in all actions and proceedings with respect to the succession, and caused such appointment to be filed in the succession proceeding;

- Discuss with your client the advisability of naming an executor who lives out of state - especially where there is an equally acceptable person living in-state.

5. A corporation not authorized to perform the duties of the office in this state; or

- Self-explanatory; unlikely to come up.

6. A person who, on contradictory hearing, is proved to be unfit for appointment because of bad moral character.

- Herein is the most common problem (especially if family members do not get along) it is best not to name an executor whose moral fitness can be reasonably expected to be attacked by other legatees.

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Having chosen the executor(s), a decision must be made as to whether of not the executor(s) should serve independently. The same decision must be made with regard to successor executors, if any. An independent executor has all of the rights, powers, authorities, privileges, and duties of a regular executor, but without the necessity of application to the court for permission in most instances. La. CCP Art. 3396-15. Where an estate is expected to be administered by a surviving spouse, all the legatees are family and all get along well, independent administration will greatly simplify the succession process and reduce legal fees. Also, if it is expected that the executor will need to sell property of the succession (e.g., immovable property or business interests), an independent executor may be a good idea. Where the executor is not a family member or there is conflict amongst the legatees, a court supervised (traditional) succession may be in order to protect both the legatees and the executor. The question of whether to have independent administration may be deferred - if the will is silent on this issue, all of the general and universal legatees may give their consent to independent administration at the time of the succession. La. CCP Art. 3396.3. If the client is absolutely against independent administration, he may prohibit independent administration absolutely. La. CCP Art. 3396.13. Other questions which must be addressed are whether the executor should be compensated and whether he should be required to post a bond. Executor compensation can be a percentage of the estate or a set fee. The default is 2.5% of the succession inventory. As a percentage fee is usually based upon the gross value of the assets administered by the executor; care

PLACER LAW FIRM, L.L.C. PAGE 8 WILL DRAFTING AND RELATED ISSUES 12/12/2017 should be taken in wording the fee language to exclude those assets over which the executor will have no control (i.e., “non-probate” assets) such as life insurance, retirement plans, etc., except where such assets are made payable to the estate or on its behalf. Where the testator does not wish to address the issue of an executor’s fee in his will, the will can simply omit mention of same. This gives the executor the option of not claiming his fee without the need for a qualified disclaimer - especially valuable where the decision will not be made within nine months of the decedent’s death. The drawback of this is that the amount of the fee is open to dispute. The decision of whether or not an executor should take a fee is more complex that often assumed. This is because the fee can be used in a federally taxable estate to reduce federal transfer tax in some cases. Also, the failure of the executor to claim a fee to which he was entitled could be deemed a gift in an estate audit. In selecting trustees for testamentary trusts, it is even more important to choose the best person for the job instead of the person most acceptable to other family members. A trust will continue for several years after the succession has been closed. Testamentary trusts are created at the moment of the testator’s death, without delay for acceptance by the trustee. LSA-R.S. 9:1821. The criteria allowing choice of trustees is more lenient than that for executors:

LSA-R.S. 9:1783. “Who may be trustee”

A. Only the following persons or entities may serve as a trustee of a trust established pursuant to this Code:

(1) A natural person enjoying full capacity to contract who is a citizen or resident alien of the United States, who may be the settlor, the beneficiary, or both.

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(2) A federally insured depository institution organized under the laws of Louisiana, another state, or of the United States, or a financial institution or trust company authorized to exercise trust or fiduciary powers under the laws of Louisiana or of the United States.

B. A nonprofit corporation or trust for educational, charitable, or religious purposes that is designated as income or principal beneficiary may serve as trustee of a trust for mixed private or charitable purposes.

As with the executor of a succession, a decision should be made as to whether the trustee should be compensated and/or should post bond. A trustee is entitled to reasonable compensation (LSA-R.S. 9:2181) and, in the case of an institutional trustee, will undoubtedly be insisted upon. With regard to bond, the default provisions require security - therefore bond must be expressly dispensed with if the client does not wish to require it:

LSA-R.S. 9:2171. “Individual and corporate trustees”

An individual trustee shall furnish security for the faithful performance of his duties, unless the trust instrument dispenses with security. A corporate trustee need not furnish security unless security is required by the trust instrument.

The amount and type of security shall be approved by the proper court if not provided for in the trust instrument.

Also, if the client dispenses with security and wishes to prevent a legatee later requiring it, this must be provided for:

LSA-R.S. 9:2172. “Security required by court”

On the application of any interested party, the proper court may compel a trustee to furnish security adequate to protect the

PLACER LAW FIRM, L.L.C. PAGE 10 WILL DRAFTING AND RELATED ISSUES 12/12/2017 interests of a beneficiary even if the trustee is not otherwise required to furnish security.

D. Using disinheritance and no contest clauses.

Because Louisiana retains (in limited form) forced heirship of descendants, it is necessary to expressly disinherit the children of a client if he or she wishes to do so. It is not sufficient to leave all mention of the child out of the will.

Forced heirs are provided for in the Louisiana Constitution in Article XII, section 5(B):

(B) The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also classify as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law. Trusts may be authorized by law and the forced portion may be placed in trust. and defined in Louisiana Civil Code Article 1493:

(A) Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty- three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.

NOTE: Forced heirship, for non-handicapped descendants, ends at age 24.

(B) When a descendant of the first degree predeceases the

PLACER LAW FIRM, L.L.C. PAGE 11 WILL DRAFTING AND RELATED ISSUES 12/12/2017 decedent, representation takes place for purposes of forced heirship only if the descendant of the first degree would have been twenty-three years of age or younger at the time of the decedent's death.

NOTE: Where a predeceased child of the decedent, who would have been under age 24 as of the date of the decedent’s death, leaves descendants, those descendants are forced heirs of the decedent.

(C) However, when a descendant of the first degree predeceases the decedent, representation takes place in favor of any child of the descendant of the first degree, if the child of the descendant of the first degree, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent's death, regardless of the age of the descendant of the first degree at the time of the decedent's death.

NOTE: A mentally or physically disabled grandchild of the decedent is a permanent forced heir if the child of the decedent who is the parent of the disabled grandchild predeceases the decedent.

(D) For purposes of this Article, a person is twenty-three years of age or younger until he attains the age of twenty-four years.

(E) For purposes of this Article "permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent" shall 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

PLACER LAW FIRM, L.L.C. PAGE 12 WILL DRAFTING AND RELATED ISSUES 12/12/2017 administering their estates in the future.

NOTE: Added by Acts 2003, No. 1207, this paragraph, if valid, greatly expands the pool of possible, permanent forced heirs at death.

This article may be invalid as the constitutional authority for forced heirship allows for heirs who “are incapable” not heirs who may become incapable in the future. (Emphasis added).

If the client desires to disinherit a child, the disinherison must be in testamentary form, express and for just cause, which cause must have occurred prior to execution of the testament (anticipation of future cause is not sufficient). La. CC Arts. 1617, et. seq. “Just cause” is defined in Louisiana Civil Code Article 1621(A):

A. A parent has just cause to disinherit a child if:

(1) The child has raised his hand to strike a parent, or has actually struck a parent; but a mere threat is not sufficient.

(2) The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury.

(3) The child has attempted to take the life of a parent.

(4) The child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death.

(5) The child has used any act of violence or coercion to hinder a parent from making a testament.

(6) The child, being a minor, has married without the consent of the parent.

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(7) The child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death.

(8) The child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time.

For a grandparent to disinherit a grandchild who is a forced heir, all of the above apply except for (6). A grandparent may disinherit a grandchild for just cause whether the “cause” was committed against a grandparent or a parent of the child. La. CC Art. 1622. If the reason the client wishes to disinherit his child or grandchild is not listed above, it is not a valid reason for disinherison. Many people who have disabled children wish to disinherit those children to avoid loss of SSI or Medicaid benefits; the proper treatment of these children is use of a “special needs trust,” not disinherison. A “no contest” or “penalty” clause generally revokes or reduces the legacy to any legatee who contests a will. Since an attack on the will is usually made by intestate heirs and such a clause would be of limited effect against forced heirs, they are generally not used in Louisiana. Also, a successful invalidation of the entire will would also invalidate the no contest clause. Louisiana Civil Code Articles prohibit conditions “contrary to law or good morals.” The courts have held that, where purely punitive in design, a no contest clause is invalid. Where the no contest clause has an ascertainable purpose, other than imposition of a penalty, it will be allowed. Succession of Kern, 252 So2d 507 ( La. App. 4th Cir) writ denied 254 So2d 462 (1971), Succession of

PLACER LAW FIRM, L.L.C. PAGE 14 WILL DRAFTING AND RELATED ISSUES 12/12/2017 Wagner, 252 So2d 10 (La. App. 4th Cir. 1983). The Wagner court, in dicta, indicated that the reason the clause was invalidated in Kern was that the contest of the will by any heir (not necessarily even a legatee) caused the entire estate to go to a third party- thus allowing an intestate heir with no rights under the will to unilaterally deprive a legatee of his legacy. It would follow that a clause which limits the penalty imposed to one only against the person who contests the will should be valid. Further, the Wagner court emphasized that the clause contested therein “simply implements the alternative provision if the heirs do not comply with the testator’s wishes.”

Example: “If any legatee under this will should contest the will or any of its provisions in any court proceeding, then the legacy(ies) previously allotted to that legatee is hereby revoked and that legatee is instead bequeathed the sum of one ($1.00) dollar.”

E. Protective clauses for minors, children with special needs and incompetent persons.

Minors, children with special needs and incompetent persons are generally forced heirs in Louisiana (see above). Protective clauses include testamentary designation of tutors, curators and trustees. With regard to “special needs trusts,” used in providing for children with special needs and incompetent persons, same is beyond the cope of these materials. Finally, any “group” legacies including the children of the client should provide for children born or discovered after execution of the testament; similarly, the client may wish to provide for the occurrence of an unanticipated forced heir.

PLACER LAW FIRM, L.L.C. PAGE 15 WILL DRAFTING AND RELATED ISSUES 12/12/2017 Wherever a client has, or may have in the future, minor children, he should provide for (a) the custodian and (b) the fiduciary of that child in the event that the client and his spouse die in a common accident or the client dies last. Also, where a divorced parent has been awarded full custody of a child, he or she may wish to designate the future caretakers of the children to prevent the non-custodial parent from asserting a right. Most clients have a relative or friend in mind to care for their children. Very few have thought the matter all the way through. Where husband and wife differ as to the identity of the best person to care for the minor children, or the best caretaker is not necessarily prudent with money, it can be advantageous to name one person as the tutor of the children and another person as trustee of a trust containing the children’s inheritance. Also, try to identify exactly who is to be the designated tutor. Clients often specify a married sibling and that sibling’s spouse - to avoid potential trouble if the designated sibling is ever divorced, only the sibling should be named as tutor in the will unless the client has a special attachment to the sibling’s spouse as well.

F. Building flexibility into the estate planning document - a look at special clauses and provisions.

To provide for future developments, both foreseen and unforeseen, a will should be flexible wherever possible. All fiduciary designations should provide names of successor fiduciaries and, where practical, means or formulae for determination of other successors if necessary. Where the client expects to be survived by his spouse, a usufruct over all

PLACER LAW FIRM, L.L.C. PAGE 16 WILL DRAFTING AND RELATED ISSUES 12/12/2017 of the client’s property listed before any particular bequests (even those to the spouse) will allow for renunciations by the spouse of naked ownership of some property and tax elections over other property as necessary. Against the event that a legatee will predecease the client or refuse his legacy, there should be alternate legatees or, at the least, residual beneficiaries named (example: “all of the rest, residue and remainder of my estate to...” Finally, the will should contain a “savings clause” - a clause at the end specifying that, in the event a clause in the will is found to be invalid, the rest of the will is to stand. Although this is not, strictly speaking, necessary under the law, it gives an added comfort level to the client and may reduce the chances of a successful attack on the will.

G. Using a power of attorney.

Powers of attorney are durable by law in Louisiana. La. CC Art. 3026. This means that the subsequent incapacity of the principal will not invalidate the power of attorney. Qualification of a curator after interdiction of the principal does cancel the power of attorney, as does the interdiction of the agent. La. CC Art. 3024. The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. La. CC Art. 2993.

The authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described. La. CC Art. 2996.

La. CC Art. 2997. “Express authority required”

PLACER LAW FIRM, L.L.C. PAGE 17 WILL DRAFTING AND RELATED ISSUES 12/12/2017 Authority also must be given expressly to:

(1) Make an inter vivos donation, either outright or to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.

(2) Accept or renounce a succession.

(3) Contract a loan, acknowledge or make remission of a debt, or become a surety.

(4) Draw or endorse promissory notes and negotiable instruments.

(5) Enter into a compromise or refer a matter to arbitration.

(6) Make health care decisions, such as surgery, medical expenses, nursing home residency, and medication.

Note in the above articles that a power of attorney must be in a form applicable to the use to which it will be put. The most common form for a general power of attorney is, therefore, authentic act (required for transfers of some types of property). Also, permission for certain actions, including the right to make donations, must be express in the document or the agent cannot perform those actions. There are two common general powers of attorney: deferred and non- deferred. A deferred power of attorney is not effective until the principal becomes incapacitated. This is also referred to as a “conditional procuration.”

LSA-R.S. 9:3890. Conditional procuration

A. The term "conditional procuration" means a written

PLACER LAW FIRM, L.L.C. PAGE 18 WILL DRAFTING AND RELATED ISSUES 12/12/2017 document stating that the procuration becomes effective upon the disability of the principal.

B. In a conditional procuration, the disability of a principal shall be established by an authentic act as described in Subsection C, stating that due to any infirmity, the principal is unable consistently to make or to communicate reasoned decisions regarding the care of the principal's person or property.

C. The authentic act shall be signed by two physicians licensed to practice medicine by the Louisiana Sate Board of Medical Examiners who have personally examined the principal. However, if the executed conditional procuration so provides, the authentic act may be signed by the attending physician who is licensed to practice medicine by the Louisiana State Board of Medical Examiners and the agent appointed in the conditional procuration.

D. A conditional procuration which has been entered into under the provisions of this Section and which has become effective as provided in this Section shall have the same effectiveness as any other procuration.

E. Except as otherwise specifically provided in this Chapter, a conditional procuration which becomes effective upon a determination of disability shall be subject to all of the provisions of the Louisiana Civil Code and all other provisions of law which govern procuration.

A non-deferred power of attorney is effective immediately when executed by the principal and agent. Powers of attorney are useful in estate planning in many ways and generally provided to clients at the same time as their wills. Usually the agent will be the principal’s spouse, and the successor agent the executor of the will. The power of attorney can then be used (if non deferred) to simplify asset transfers when the principal is unavailable an/or to make medical decisions in the

PLACER LAW FIRM, L.L.C. PAGE 19 WILL DRAFTING AND RELATED ISSUES 12/12/2017 event of the principal’s injury or incapacity (deferred powers of attorney will require activation).

H. Executing the will.

The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. CC Art. 1573.

NOTE: As the requisite formalities are well described in the Louisiana Civil Code, please find below the applicable articles:

There are two forms of testaments: olographic and notarial. La CC Art. 1574.

NOTE: The above materials deal with the notarial will. It may be advisable from time to time to advise a client as to the use of an olographic will, as when a client is leaving on a trip and does not have time for the drafting of a notarial will before departure.

La. CC Art. 1575. “Olographic testament”

A. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.

B. Additions and deletions on the testament may be given effect

PLACER LAW FIRM, L.L.C. PAGE 20 WILL DRAFTING AND RELATED ISSUES 12/12/2017 only if made by the hand of the testator.

NOTE: Writing placed after the signature of the testator may be, but is not required to be, considered by the court. When advising a client about the requirements of an olographic will, be certain to instruct him to sign the will at the bottom.

A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1. La. CC Art. 1576.

NOTE: A notarial will is essentially the same as the old “statutory will.”

La. CC Art. 1577. “Requirements of form” The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

NOTE: The notary, witnesses and testator must remain in the room for the entire will signing.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____day of ______, ____."

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NOTE: The easiest and generally accepted as best practice is to copy this paragraph verbatim into your will form.

La. CC Art. 1578. “Notarial testament; testator literate and sighted but physically unable to sign”

When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:

(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of the testator and each other, we have subscribed our names this _____day of ____, _____."

La. CC Art. 1579. “Notarial testament; testator unable to read”

When a testator does not know how to read, or is physically impaired to the extent that he cannot read, whether or not he is

PLACER LAW FIRM, L.L.C. PAGE 22 WILL DRAFTING AND RELATED ISSUES 12/12/2017 able to sign his name, the procedure for execution of a notarial testament is as follows:

(1) The written testament must be read aloud in the presence of the testator, the notary, and two competent witnesses. The witnesses, and the notary if he is not the person who reads the testament aloud, must follow the reading on copies of the testament. After the reading, the testator must declare or signify to them that he heard the reading, and that the instrument is his testament. If he knows how, and is able to do so, the testator must sign his name at the end of the testament and on each other separate page of the instrument.

(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: "This testament has been read aloud in our presence and in the presence of the testator, such reading having been followed on copies of the testament by the witnesses [, and the notary if he is not the person who reads it aloud,] and in our presence the testator declared or signified that he heard the reading, and that the instrument is his testament, and that he signed his name at the end of the testament and on each other separate page; and in the presence of the testator and each other, we have subscribed our names this ____day of ____, ______."

(3) If the testator does not know how to sign his name or is unable to sign because of a physical infirmity, he must so declare or signify and then affix his mark, or cause it to be affixed, where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark or to sign his name in his place. The other person may be one of the witnesses or the notary. In this instance, the required declaration must be modified to recite in addition that the testator declared or signified that he did not know how to sign his name or was unable to do so because of a physical infirmity; and that he affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page.

PLACER LAW FIRM, L.L.C. PAGE 23 WILL DRAFTING AND RELATED ISSUES 12/12/2017 (4) A person who may execute a testament authorized by either Article 1577 or 1578 may also execute a testament authorized by this Article.

La. CC Art. 1580. “Notarial testament in braille form”

A testator who knows how to and is physically able to read braille, may execute a notarial testament according to the following procedure:

(1) In the presence of a notary and two competent witnesses, the testator must declare or signify that the testament, written in braille, is his testament, and must sign his name at the end of the testament and on each other separate page of the instrument.

(2) In the presence of the testator and each other, the notary and witnesses must sign the following declaration, or one substantially similar: "In our presence the testator has signed this testament at the end and on each other separate page and has declared or signified that it is his testament; and in the presence of the testator and each other we have hereunto subscribed our names this ____day of _____, _____."

(3) If the testator is unable to sign his name because of a physical infirmity, he must so declare or signify and then affix, or cause to be affixed, his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary. In this instance, the required declaration must be modified to recite in addition that the testator declared or signified that he was unable to sign his name because of a physical infirmity; and that he affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page.

(4) The declaration in the notarial testament in braille form must be in writing, not in braille.

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La. CC Art. 1580.1. “Deaf or deaf and blind notarial testament; form; witnesses”

A. A notarial testament may be executed under this Article only by a person who has been legally declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English.

B. The notarial testament shall be prepared and shall be dated and executed in the following manner:

(2) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: "The testator has signed this testament at the end and on each other separate page, and has declared or signified in our presence that this instrument is his testament, and in the presence of the testator and each other we have hereunto subscribed our names this ______day of ______, 2____ ."

C. If the testator is unable to sign his name because of a physical infirmity, the testament shall be dated and executed in the following manner:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify by sign or visual English to them that the instrument is his last testament, that he is unable to sign because of a physical infirmity, and shall then affix his mark at the end of the testament and on each other separate page of the instrument.

(2) In the presence of the testator and each other, the notary

PLACER LAW FIRM, L.L.C. PAGE 25 WILL DRAFTING AND RELATED ISSUES 12/12/2017 and the witnesses shall then sign the following declaration, or one substantially similar: "The testator has declared or signified by sign or visual English that he knows how to sign his name but is unable to sign his name because of a physical infirmity and he has affixed his mark at the end and on each other separate page of this testament, and declared or signified in our presence that this instrument is his testament and in the presence of the testator and each other we have hereunto subscribed our names this ______day of ______, 2_____."

D. The attestation clause required by Subparagraphs B(2) and C(2) shall be prepared in writing.

E. (1) A competent witness for the purposes of this Article is a person who meets the qualifications of Articles 1581 and 1582, and who knows how to sign his name and to read the required attestation clause, and is physically able to do both. At least one of the witnesses to the testament shall also meet the qualifications of a certified interpreter for the deaf as provided for in R.S. 46:2361 et seq.

(2) The testator shall be given the choice of accommodation services afforded by the use of large print, braille, or a tactile interpreter.

La. CC Art. 1581. “Persons incompetent to be witnesses” A person cannot be a witness to any testament 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 notarial testament under Article 1579.

NOTE: Use of incompetent witnesses will invalidate an otherwise perfect testament.

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WILL CHECKLIST - CLIENT CONFERENCE Placer Law Firm, L.L.C.

Client/File No.: ______Date: ____/____/____

Priority matter? ____ yes ____ no Date for completion: ____/____/____

Reciprocal will for spouse? ____ yes ____ no Spouse: ______

TESTATOR

Full (maiden) name: ______

Parish of domicile: ______

Disabilities: ______

______

EXECUTOR

Full (maiden) name(s): ______

Independent? ____ yes ____ no If co-executors, power to act alone? ___ yes ___ no

Compensation: ____ yes ____ no ____ ignore Amount: $______/ ___%

SUCCESSOR EXECUTOR

Full (maiden) name(s): ______

PLACER LAW FIRM, L.L.C. PAGE 27 WILL DRAFTING AND RELATED ISSUES 12/12/2017 Independent? ____ yes ____ no If co-executors, power to act alone? ___ yes ___ no

Compensation: ____ yes ____ no ____ ignore Amount: $______/ ___%

NOTES: ______

______DEBTS

Accelerate mortgages? ____ yes ____ no (i.e., pay off prior to judgment of possession)

Personal loans? ____ yes ____ no

1. Full (maiden) name of debtor: ______specify loan as estate asset? __ Y __ N bequeath to debtor? __ Y __ N

2. Full (maiden) name of debtor: ______specify loan as estate asset? __ Y __ N bequeath to debtor? __ Y __ N

3. Full (maiden) name of debtor: ______specify loan as estate asset? __ Y __ N bequeath to debtor? __ Y __ N

4. Full (maiden) name of debtor: ______specify loan as estate asset? __ Y __ N bequeath to debtor? __ Y __ N

SPOUSE

Full (maiden) name: ______

Pre-nuptial/separate property agreement? ____ yes ____ no

Usufruct: ___ none ___ all property ___ community only ___ other

PLACER LAW FIRM, L.L.C. PAGE 28 WILL DRAFTING AND RELATED ISSUES 12/12/2017 NOTES: ______

______

Duration: ___ life ___ remarriage ___ cohabitation

Attaches to proceeds of sales? ____ yes ____ no

Right to convert without consent of naked owners? __ yes __ no

Specific bequest: Description/municipal address:

____ Everything: ____ community ____ separate

____ Home ______

____ Home contents ______

____ Land/bldg ______

____ Automobiles ______

____ Boats/trailers ______

____ Retirement int. ______

____ Life ins. int. ______

____ Other: 1. ______

______

2. ______

______

3. ______

PLACER LAW FIRM, L.L.C. PAGE 29 WILL DRAFTING AND RELATED ISSUES 12/12/2017 ______

4. ______

______

____ QTIP directive.

CHILDREN

Full (maiden) name Bequest in Trust? Age - DOB

1. ______yes ___ no ____ - ____/____/____

2. ______yes ___ no ____ - ____/____/____

3. ______yes ___ no ____ - ____/____/____

4. ______yes ___ no ____ - ____/____/____

5. ______yes ___ no ____ - ____/____/____

6. ______yes ___ no ____ - ____/____/____

Full (maiden) name of trustee(s): ______

Successor trustee(s):______

Specify tutor (custody) of minor children? ____ yes ____ no

Full (maiden) name of tutor(s): ______

Under-tutor/ successor(s):______

PLACER LAW FIRM, L.L.C. PAGE 30 WILL DRAFTING AND RELATED ISSUES 12/12/2017 Specific bequests:

Child Bequest

1. ______

2. ______

3. ______

4. ______

5. ______

6. ______

7. ______

8. ______

9. ______

NOTES: ______

______

Bequests subject to usufruct? __ yes __ no (specify: ___, ___, ___, ___, ___)

Dispense with collation? ____ yes ____ no

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THIRD PARTY BEQUESTS