You Should Make a Last Will and Testament

Members of the Crescent City Lodge of the Fraternal Order of Police are entitled to 2 hours per year of legal services for whatever legal needs you may have as a benefit of membership. The legal needs do not have to be related to the performance of your duty in any way. In fact, legal issues resulting from the performance of your duty as a police officer are covered by other elements of the FOP Legal Defense Plan. I am recommending that you consider using those 2 hours to draft a last will and testament. I cannot speak for any other attorney who does FOP Legal Defense Plan work, but, assuming you don’t need complicated estate planning and a complicated last will and testament to accompany the complicated estate planning, I will take care of your last will and testament that doesn’t cost you anything out of pocket. I will even throw in a living will, if you want. If the information below makes your head spin or generally causes confusion, feel free to call for an explanation or with any questions. You can also skip to the last paragraph and I will do whatever I can to help.

If you die without a will in Louisiana then you have died intestate. In the event an individual dies intestate in Louisiana, then that person’s estate devolves by the laws of intestacy. What does that mean? That means that whatever property the deceased has at the time of death after the bills are paid, is distributed based on the Louisiana Civil Code articles setting the order of heirship.

An heir is someone who receives a share of an estate by law or judicial process. A legatee is someone who receives a share of an estate as a result of a bequest in a last will and testament. A beneficiary is someone who receives some benefit as a result of being designated the beneficiary during the lifetime of the decedent. Things with a beneficiary, such as insurance policies, pensions, 401k’s, etc., are not part of one’s estate and operate outside of a last will and testament or the laws of intestacy.

If someone dies without a will in Louisiana, the estate will go to descendants or ascendants in equal portions in the following order: 1) children; 2) siblings; 3) parents; 4) surviving spouse; 5) other ascendants; 6) other collateral relatives by degree. The surviving spouse is entitled to the surviving spouse’s share of the community property but does not become an heir of the decedent’s community property unless there are no children, siblings, or parents that are heirs first. As you can see, it gets a little complicated. It gets even more complicated when there are 1/2 siblings or if siblings predecease the decedent.

In addition to all that intestate confusion, we have to mention the civil law concept of usufruct. Let’s say, hypothetically, that Officer A dies intestate with 2 children and a surviving spouse. In this case, Officer A’s children each receive a 50% “naked ownership” interest in the estate and the surviving spouse would get usufruct for life. What the fruct?

There are three elements to ownership: 1) usus, 2) fructus, and 3) abusus. The usus is the use of the thing. The fructus is the fruits of the thing (for example rent from a rental property is the fruit of the rental property). The abusus is the right to destroy or dispose of the property. If one is a naked owner, then that person only has the abusus. The usufructuary (the person with the usufruct) has the usus and the fructus. Together, the naked owner and the usufructuary combine to have full ownership. Apart, neither has a right to sell or dispose of the property.

In Louisiana, we also have forced heirs. Forced heirs are any first line descendants who are 23-years-old or younger or first line descendants who are incapable of caring for themselves due to physical or mental infirmity, regardless of age. Forced heirs must receive a portion of the decedent’s estate unless the forced heir is disinherited. Please note this is a very brief, simple discussion of forced heirship. As you could imagine, it gets more complicated.

Unborn children are entitled to a portion of the estate, assuming they are conceived prior to the decedent’s death. Children of heirs can take based on representation. There is more. Intestacy can be easy at times and complicated others.

How does one avoid all that? By executing a last will and testament. In a last will and testament, one can specify who they would like to receive property in an estate. A last will and testament can’t override the laws on forced heirship, but otherwise, it gives one some control over how their estate is distributed after death. For the purposes of this post, I am going to leave it here. If you have questions, feel free to call me.

A living will is different from a last will and testament. A living will is a declaration of how you want to be handled if you are unable to make those decisions for yourself. Again, I am happy to go over that with people individually if necessary.

I want to conclude by suggesting that every member of the Crescent City Lodge (NOPD employees) should take advantage of the opportunity to draft and execute a last will and testament. As I stated above, I can generally do that with no out of pocket expense for the FOP member. Call me and we can set up an appointment to discuss the matter further.

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