Legal Guide to Wills

Authored By: Lagniappe Law Lab

Is there a will?

What is a last will and testament?

A will is a legal paper that lists a person's wishes about what will happen to their property, after their death.

Why do you need a last will and testament?

  • Most people do not know or think that they need a last will and testament. Some people think it is only for those who are wealthy. In reality, everyone needs a last will and testament. Creating a last will and testament reduces or eliminates the issues and obstacles that your family deals with after your death. 

  • A clear-intentioned, well-drafted last will or testament clearly establishes who is in charge, protects the assets you leave, clearly states who you wish to care for, reduces family discord, and simplifies the process for your family or administrator to the estate to file a succession.
  • If you own real property of any kind (even heirs’ property) and you do not have a deed (that automatically passes your real property at the time of your death) then you need a last will and testament. If you do not know whether or not your deed passes your real property at the time of your death, then a last will and testament is needed. 

  • A last will and testament allows you to nominate a Guardian to care for your children. You can also nominate a Testamentary Trust to protect assets left to minors or incapacitated adults. 

  • A last will and testament can still create problems for heirs’ property by leaving property to more than one person. Discuss with an attorney how you can plan for alternatives to leaving real property to multiple heirs.


What is a testate succession?

A testate succession occurs when there is a valid-will. Otherwise the will is void. The law determines how the estate gets administered and divided. 

A Valid Will

A will helps decide who gets your property and how it gets divided after you die. If the will is invalid, then the property passes by law and not by will.

  • A valid last-will has many effects such as:

    • Name a guardian or tutor for any minor children

    • Create a trust for grandchildren, special needs or spendthrift heirs

    • Remove doubt about where your property goes after your death

    • For larger estates - make provisions to save estate taxes

Forms of Wills

A will can be in different forms. Not all wills need to be a notarial will. A will can be olographic (or handwritten). Louisiana law allows the person creating the will to choose between the forms of wills. The will must meet the legal requirements under Louisiana to be valid.

Legal Requirements for a Valid Will

  • A notarial will gets prepared and written before death. It gets signed in front of a notary with two witnesses. 
  • A olographic will is a handwritten last will and testament that is valid only if it gets written, dated, and signed by the decedent while living. An olographic will does not need to get notarized before it can get admitted to court in a succession case. 

The Last Will and Louisiana Forced Heirship Law

Links to the Law

How to Create a Will

Drafting and signing a will

A person must create a will that will be considered valid after they die. By drafting and signing a valid-will a person can specify what will happen to their property after death. A valid will also specifies what will happen to the responsibilities of a person after death.

Steps to Creating a Will

Get to know the state’s requirements under state law to govern living wills. Wills are not federal law issues. A will gives you a right to decide who gets your property when you die.

  • Begin drafting the will with the standard provisions in a last-will and testament. Include standard provisions as discussed below. Every person’s will is different but including these standard provisions in sections of the will may eliminate issues or confusion later-on. 

  • A will cannot get made by more than one person. A will belongs to one person.

  • Prepare a final version of your will. 

  • Leave a space for you and two witnesses to sign the will. Do NOT yet sign the will. 

  • Go to a notary public. 

  • Bring yourself and two witnesses. 

  • The witnesses will attest to everything in the will and when the document got signed and dated.

  • Keep your original copy of your will in a safe and secure place. Consider making another copy of your will in case the original gets destroyed or lost. 

  • You can change your will if you want to either in whole or in part but may need to consult an attorney based on your situation.
  • A last will and testament is effective at the time of your death and after it has been filed as a succession in the parish court.

Standard Provisions in a Will

This concerns how a person can create a will that will be considered valid after they die, in order to specify what will happen to their property and responsibilities.

About Standard Provisions in a Will

  • Introduction 

  • Background 

  • Burial and Cremation

  • Debts and Expenses 

  • Real Property 

  • Tangible Personal Property 

  • Cash, Bank Accounts, and Investments 

  • Remainder of Property (AKA residue or residual estate) 

  • Testamentary Trust 

  • Special Needs Trust 

  • Executor and Trustee 

  • Reports and Bonds 

  • Powers of Executors and Trustee(s) 

  • Survivorship 

  • Guardians and Conservators 

  • Joint Tenancy with Right of Survivorship 
  • Jointly-Held Bank Accounts 

  • Bank or Investment Accounts with Payable-On-Death (POD) or Transfer-On-Death (TOD) beneficiaries named 

  • Life Insurance and Retirement Funds 

  • Assets Held in a Trust

Change or revoke your last will

How to change your last will and testament

There may be many reasons you wish to change your last will and testament. It might be because of a life change, such as a marriage, divorce, birth of a child, or death of an administrator or heirs. It may also be that you change the state you live and own property in. These types of changes can revoke or change your documents. Find an attorney if one of these life changes happens and ask whether you need to prepare new documents.

  • Do not make any changes to the will by writing on the document itself. i.e. crossing out sections, changing names of beneficiaries. These changes may be ineffective or may cause the entire will to be invalid. This is true even if the changes have initials, there are witnesses, or it's notarized. 

  • If you want to make changes to your last will and testament, it is better to make a new last will and testament

  • Another option is to make a codicil, the term for an amendment to a Last Will and Testament. Find out an attorney who has experience in estate planning to see if they can help you with creating a codicil.

  • A testator may revoke the will at any time. The testator may write a new will, add a codicil or change, thereby revoking a prior will or disposition. 
  • A testator may dispose of particular property left during his or her lifetime, i.e. selling home or car that is left to legatees in the will. 

Revocation of an entire will occurs when the testator does any of the following: 

  1. Physically destroys the will, or has it destroyed at his discretion
  2. Declares a revocation like in the situations and forms above or in an authentic act. 
  3. Idenitfy and clearly revoke the will by a writing that is written and signed by the testator in their own handwriting. 
  4. Destroy or revoke the second will which revives the first will, if the first will is not destroyed. 

Proving the existence of a will when the original gets lost

In a typical succession, the original will gets presented to the court to file and execute. The petitioner can search for the original if the original gets lost.

  • A petitioner may see if it is in the notary's possession if it is a notarial will.
  • If the testator registered the will, it may be on record from the Secretary of State. Some parishes allow wills to get registered with the court or notarial archives. In some parishes there are will "books" that you can reference in the petition. The will can get located on a specific book and page without presenting the original will.
  • The presumption if you cannot locate a will is that the original copy, if executed, got destroyed. Destruction revokes the original will. To show otherwise there must be clear proof:
  1. That the testator made a will
  2. Of the contents or substance of the will
  3. Of the fact of the will i.e. that it could not get located at the death of the testator and the testator never revoked it
  • This process is usually done by an affidavit. The affidavit includes personal knowledge that the original will existed. It also includes that it got lost or destroyed by some force, such as a fire or natural disaster.
Last Review and Update: Jun 28, 2022
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