Validity of a Will When Moving to a Different State

Reasons to Revise Your Will After Moving to Louisiana

Whether you’ve moved to pursue a new job or simply want to live in the Bayou State, reviewing your estate plan should be a first priority. While Louisiana law explicitly allows out-of-state wills to be recognized as valid if they meet the requirements of the state in which they were executed, there can be problems.

Potential Complications of an Out-of-State Will

• The will was signed or executed in a state that does not recognize community property
• The will directs the disbursement of out-of-state or overseas assets
• The will contains instructions or conditions that have no legal equivalent in Louisiana

Reasons to Revise Your Will

• You are planning to permanently live in Louisiana
• You are transferring most of your assets to Louisiana
• You wish to spare your loved ones the hassle of having to probate a will in multiple states

What Makes a Will Valid Under Louisiana Law

All Louisiana wills must meet the following requirements to be considered valid:

• The testator must be age 18 or older.
• The testator must be of sound mind.
• The testator must understand that they are writing or signing a will.
• The testator must either write the will in their own handwriting or sign the will in the presence of a notary and at least two disinterested witnesses.

Louisiana Recognizes Two Types of Wills

• Olographic testaments. An olographic testament is a will that was handwritten by the testator. While olographic testaments don’t need to be notarized or bear witness signatures, they must still be signed and dated by the testator.
• Notarial testaments. A notarial testament should be signed and dated in the presence of a notary and at least two disinterested witnesses. Both the notary and witnesses should sign a declaration affirming the testator recognized that the document is intended to serve as their last will and testament. 

Potential Problems With Out-of-State Wills

Although Louisiana’s legal system has the capacity to recognize out-of-state wills, an estate plan intended for use in another jurisdiction could make it more difficult to:

• Identify an executor. Every will should nominate a personal estate representative or executor who is responsible for initiating and overseeing probate. An executor is typically an attorney or a close friend or relative. If the executor resides in another state, they may not find it practical—or possible—to fulfill their duties in Louisiana. Additionally, even if the personal representative is willing to travel to the Bayou State, they may have to seek reimbursement from the estate.
• Initiate probate. If an estate plan does not explicitly accommodate or conform to Louisiana law, the executor and the beneficiaries may have to initiate probate in different states simultaneously. 
• Inventory the estate. Every state has its own requirements for probate. In general, the executor must marshal and inventory the estate’s assets. This process is typically time-consuming, even if the assets are all located inside a single state. If the estate’s holdings fall in different jurisdictions, it could take weeks—if not months—for the executor to fulfill this obligation.
• Distribute inheritances. The distribution of gifts and inheritances could be delayed or compromised by conflicting state laws and expectations, especially if the out-of-state will does not account for Louisiana-specific statutes. For example, Louisiana is a “community property” state that considers certain assets acquired during the course of a marriage to be jointly owned by both spouses. Since community property law can supersede other estate planning provisions, the state could apportion assets to a surviving spouse that the deceased person had intended to be gifted to children or other relatives.

Contact Us Today

Probating and fulfilling the conditions of an out-of-state will can be challenging for everyone involved. In most cases, writing a new will is the easiest, simplest, and least expensive way to spare beneficiaries the uncertainty of multi-state probate.  

If you have recently moved to Louisiana, the Scott Law Group could help you ensure that your estate plan remains safe from complications. Please call us at 504-264-1057 to schedule your consultation.

Louisiana’s Rules for Recognizing Wills Executed in Other States

When a person moves to Louisiana with a will executed in another state, the first question is whether that out-of-state will is valid under Louisiana law. Louisiana’s approach to this question is governed by Louisiana Civil Code article 1582, which provides that a testament executed in another state is valid in Louisiana if it was valid under the law of the place where it was executed at the time of execution. This means that if you executed a will in Texas that met Texas’s formal requirements — and it was valid in Texas when you signed it — that will is generally recognized as valid in Louisiana even if it does not meet Louisiana’s specific requirements for either a notarial will or an olographic will. The validity of the document is evaluated under the law that applied when and where it was signed, not under Louisiana’s law at the time of your death.

The practical significance of this rule is that most people who move to Louisiana from other states with a validly executed will do not need to immediately rush to create a new will solely to satisfy Louisiana’s specific formalities. A will that was validly executed in the prior state, under that state’s requirements, will typically be recognized for purposes of disposing of most estate assets. However, “typically recognized” is not the same as “perfectly suited for Louisiana,” and there are numerous reasons why a Louisiana estate planning attorney should review any out-of-state will after a move to Louisiana — not to simply ratify it as valid, but to analyze whether it accomplishes what the testator currently intends and whether its provisions interact correctly with Louisiana’s unique succession law framework.

There is an important limitation on the recognition of out-of-state wills: even a will that is valid under the law of the state where it was executed may fail to effectively accomplish the testator’s intentions with respect to Louisiana-situated immovable property — real estate located in Louisiana. Louisiana applies its own law to the succession of immovable property located within Louisiana, regardless of where the testator was domiciled. An out-of-state will that makes bequests of “real property” using legal terminology that has a different meaning in Louisiana than in the state of execution may produce unintended results when applied to Louisiana real estate. The interaction between the out-of-state will’s provisions and Louisiana’s community property law, forced heirship rules, and property succession laws requires analysis by a Louisiana succession attorney.

Problems an Out-of-State Will May Create in Louisiana

Community property is the most significant potential problem for people who move to Louisiana from a common-law property state. Louisiana is one of only nine community property states in the United States, and its community property rules apply to all property acquired by married spouses during the marriage while they are domiciled in Louisiana. If a person married in a common-law property state, where assets were legally titled individually, and then moved to Louisiana, the property they acquire after the move may become community property subject to Louisiana’s succession rules — even if the parties never explicitly agreed to community property and their pre-move assets were treated as separate. An out-of-state will drafted under common-law property assumptions may not correctly address what happens to the community property portion of the estate after a move to Louisiana.

Forced heirship is another Louisiana-specific rule that out-of-state wills frequently fail to address. Louisiana requires that children who qualify as forced heirs — those under twenty-four years old at the time of the parent’s death, or those with certain permanent disabilities — receive a protected minimum share of the estate. An out-of-state will that attempts to disinherit a child or leave a forced heir’s share to another person will be invalid to the extent it violates the forced heirship protection. The forced heir can assert their protected share in a Louisiana court proceeding regardless of what the will says. An estate plan drafted in a state without forced heirship protections — which includes all other states — may need significant revision after a move to Louisiana to reflect this mandatory rule.

Executor qualifications are another area where out-of-state wills sometimes create administrative problems in Louisiana. Some states impose no residency requirements on executors, while others limit executor appointments to residents of that state. Louisiana does not require executors to be Louisiana residents, but the practical challenges of administering a Louisiana succession from another state — appearing in Louisiana courts, working with Louisiana financial institutions, and managing Louisiana real estate — can create significant difficulties for an out-of-state executor who is unfamiliar with the Louisiana system. An out-of-state will that names a family member in another state as executor may be legally valid but practically challenging to administer in Louisiana, particularly for a complex estate involving Louisiana real estate or business interests.

Why Moving to Louisiana Is a Good Reason to Update Your Estate Plan

Moving to Louisiana is one of the most compelling triggers for a comprehensive estate plan review and update. The combination of Louisiana’s civil law heritage, community property system, forced heirship rules, and specific formalities for valid testamentary documents makes Louisiana significantly different from every other state’s succession law. An estate plan prepared by a competent attorney in another state may be a valid document, but it may not reflect the testator’s actual intentions when applied to Louisiana law — and the differences may only become apparent after death, when they are expensive and uncertain to correct through litigation. The cost of updating an estate plan is trivial compared to the cost of fixing the problems that arise from an outdated plan at the time of administration.

The Louisiana estate planning attorney who reviews an out-of-state will does not simply check whether the document is formally valid under Civil Code article 1582. The review should assess whether the will’s substantive provisions produce the intended results under Louisiana law, whether any provisions conflict with Louisiana’s mandatory rules, whether the executor designation creates practical difficulties, and whether the overall estate plan — including beneficiary designations on life insurance and retirement accounts — is coordinated with the will’s provisions. A person who moved to Louisiana with a will that was valid in their prior state may need to execute a new Louisiana will, sign a community property agreement with their spouse, update beneficiary designations, or create a trust to accomplish what the out-of-state plan was intended to achieve.

The practical advice for anyone who has moved to Louisiana with an existing estate plan is to schedule a consultation with a Louisiana succession attorney as soon as possible after the move — ideally within the first year of establishing Louisiana domicile. The consultation allows the attorney to review the existing documents, identify any provisions that may conflict with Louisiana law or that may not produce the intended results, and recommend what changes are needed. In many cases, the out-of-state will is serviceable with minor modifications. In others, a fresh start with a properly drafted Louisiana will and coordinated ancillary documents is the more efficient approach. Either way, the consultation provides the clarity and confidence that come from knowing the estate plan is appropriate for Louisiana — not just assumed to be.