If You Don’t Have A Will, The State Will Take Care Of Your Family–or Not

by Eric M. Schorr

According to a 2015 Harris Poll, 64% of American adults don’t have a will. Of those without a will, many say they simply don’t need one. Unfortunately, many people have a poor understanding of how their property will be distributed if they die without a will.

If you die intestate, i.e., without a will, the laws of the state where you lived determine how and to whom your property passes. Because Louisiana is a community property state, how your assets are distributed to your heirs depends on whether those assets are your “separate property” or “community property.”

Generally, a married couple’s community property includes property acquired during the marriage with earning of either spouse – salaries, for instance, and income derived from separate property.

Separate property includes property that you owned prior to the marriage, and property that you receive through a donation or as an inheritance.

Under Louisiana’s intestacy laws, your separate property passes to your descendants in equal shares, by roots. So, if you have children, your separate property goes to your children, equally. If a child predeceased you, then your deceased child’s share is inherited by his children, and, if they are deceased, by their children, and so on. If you have no descendants, then your assets are inherited by your siblings (and then their descendants), but subject to the usufruct in favor of your parents.

Many people are surprised to learn that your surviving spouse only inherits your separate property if you leave no surviving descendants, no surviving parents, no siblings, and no descendants of siblings.

Community property is treated differently than separate property; one-half goes to your surviving spouse, and the other half belongs to your estate.

If you die with no descendants, then your spouse is entitled to your share of community property. However, if you are survived by descendants, your descendants inherit your community property subject to your spouse’s usufruct. The surviving spouse’s usufruct lasts until the spouse either dies or remarries.

The word “usufruct” is derived from the Latin words usus “to use” and fructus “fruits,” i.e., profits. Thus, the usufruct is the right to use and enjoy property, but it is not equivalent to full ownership. Among other limitations, the person having a legal usufruct does not have the right to alienate some property without the consent of the “naked owners,” the people who take the property when the usufruct terminates.

Dying intestate can cause unintended consequences, and it can lead to resentment among heirs, and even litigation. So, before you let the state decide who will inherit your assets, make sure you know what the state has in mind.

This article was originally published in Senior Living Magazine

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