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Estate Planning

I Just Moved to Louisiana. Is My Will Still Valid?

By June 29, 2021July 2nd, 2021No Comments

You recently moved to Louisiana from out of state.  You were in your last home for many years.  You got married, you worked there, you raised a family.  And like all responsible moms and dads, you drafted a will and other estate planning documents to protect your family in case you die.  

Maybe you moved to Louisiana to enjoy retirement in the warmth of the Old South.  Or maybe you got a job offer that provided you an opportunity you just couldn’t turn down.  Whatever the reason, you are here now, and here you plan to stay.

After you moved, you updated your car insurance, got a Louisiana driver’s license, changed your voter registration.  But what about your will?  Maybe your will isn’t that old, and so maybe not much has changed in your life except this big move.  But doesn’t Louisiana have different laws?  Maybe you’ve heard that unlike the other forty-nine states, Louisiana’s laws are derived from the French Civil Code.  Maybe you’ve heard horror stories about a will that got tossed out because it doesn’t use the right language required by Louisiana law, leaving the legatees to fight over the property they thought was securely transferred.

You look over your will.  It looks right to you.  But what if the language and terms used in your old state are not the same as the language and terms Louisiana uses?  What if something should happen to you, and the court throws out your will on some arcane technicality?  That would be a lot of money spent for nothing!  Not to mention the money your intended legatees need to spend to clean up the mess you inadvertently left behind.

Well, there is some good news: Louisiana law contemplates that people move all the time.  While the legislature does have exacting standards on what constitutes a proper will, and courts will throw wills out for slight or seemingly irrelevant deviations from those standards, it recognizes that it would be a bad idea to discourage immigration to our state.  And throwing out wills willy nilly because they were written in another state would probably do just that.  

So if you moved here from another state, a U.S. territory, or even a foreign country, as long as you can show your will is valid under the laws where you lived before you moved here, it is probably valid in Louisiana even if it is not in the “correct” form as defined by our laws.  Louisiana does have very strict definitions of what constitutes a valid will, and the case law is replete with examples of courts knowing what a testator intended, but regretfully invalidating a will on what many would call a small technicality.  But as long as your out of state will meets the requirements of your home state, you will get the benefit of the doubt.  

Also, as I like to tell my clients, careful planning ensures your will works as a living, breathing document that adapts easily to some pretty major life changes.  So in most cases, a well-crafted testament does not need to be changed when you change homes, or sell or acquire investments, or even if you have another child.  Even if your spouse or another one of your intended legatees dies before you do, your will anticipates that possibility.  You have enough to worry about in that unfortunate circumstance, and so your will automatically adapts to the change without you needing to change a thing.  I try to write your will to be just as effective in forty days or in forty years, no matter what life throws at you in the meantime.  

That said, it is always advisable to have a lawyer at least review your circumstances when you move to another state, or for any other major change in your life.  After all, property laws do vary from state to state.  Louisiana is a community property state, which presents different sets of rules for spouses who own property, and inherit property from each other.  And then there is our unique tradition of forced heirship.  If you have kids under 24, Louisiana law may require you to provide for them more than your existing, out of state will contemplates.  

Also, if you moved to Louisiana from another country, your will may not be written in English. That presents some unique challenges unless the judge probating your will happens to be not only fluent in the language of your country of origin, but also knowledgeable about legal terms of art that are not readily capable of translation into English.  

Then, there are simply practical considerations: if your executor (the person responsible for presenting your will to the court and possibly administering your estate) now lives several states and a thousand miles away from you, he or she may no longer want to perform the job.  And even if he or she is still willing, having an out of state executor may burden your estate with some unnecessary expenses you can easily avoid by appointing a loved one or friend who lives closer to your new home.

Finally, it is important to remember that estate planning is about more than writing your will and what happens after you die.  It also involves powers of attorney and healthcare directives that come into effect when you are still around, but unable to readily manage your own affairs.  Unlike wills, healthcare directives and powers of attorney are usually presented to private entities, not to courts.  Courts will attempt to work around discrepancies to make an out of state will work, but hospitals, banks, and other private entities are under no such obligation.  Self-protection may cause them to reject an agency or healthcare directive that is perfectly compliant with the laws of Indiana, but misses a few beats that Louisiana law requires.  Of course, lying in the hospital with a serious illness is the last place you want to encounter bureaucratic snafus you could easily have avoided when your health was not an issue.

So while a move into Louisiana does not invalidate your will or directives that were drafted in another state, there are several conditions peculiar to Louisiana law that make it a very good idea to have an experienced attorney review your estate planning documents to see if they need revision; or at least a little tweaking. Even if there are no problems with your will, changes in life often bring a change in perspective.  You may decide you want to do things a little differently than you previously thought. 

Taking a few minutes now to go over your estate plan with an experienced attorney may well save you serious headaches down the line when you can least afford to deal with them.

Greg Nichols

Author Greg Nichols

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