Validity of Wills From Other States

My father died in Louisiana, but his will was prepared in another state. Can I open succession with an out-of-state will in Louisiana, or will a Louisiana court recognize a Last Will and Testament drafted in another state?

Louisiana Recognizes Out-of-State Wills

Under Louisiana law, a Louisiana court will recognize a will that is executed out of state if the will was prepared in a manner and form that would make it valid under the law of the state where it was signed, or under the law of the state where the person who made the will was domiciled at the time he or she signed the will.

A Practical Example

Let’s say that your parent owns a home in Louisiana. Later in life, due to health reasons, your parent moves to Texas to live with your sister who can provide daily care. During that time, a Texas attorney assists your parent in drafting a will that complies with Texas law’s form requirements, but differs from the format that Louisiana requires. After your parent passes away, a succession is necessary in Louisiana to transfer the family home.

Although the will is not in the format that Louisiana law requires, a Louisiana court will nevertheless recognize and probate the will since it was prepared in accordance with Texas law.

Ancillary Succession When Probate Was Opened Elsewhere

Sometimes a person’s succession is opened in another state and the will is admitted to probate outside of Louisiana. If there is also a need to open a succession in Louisiana to deal with assets located here, Louisiana law permits the family to present a certified copy of the probated will from the other state, and the will shall have the same force and effect as the original probate of a domestic will.

When an Out-of-State Will Is Challenged

Recognizing that a will is formally valid under another state’s law does not prevent an interested party from challenging the will on substantive grounds — such as lack of testamentary capacity or undue influence. Those challenges proceed in the Louisiana succession court regardless of where the will was executed.

Relevant Louisiana Statutes

The uniform wills and probate law is found at Louisiana Revised Statute 9:2401 and 9:2421 et seq. For additional assistance with a Louisiana succession involving an out-of-state will, contact Scott Law Group — Estate Counsel or call (504) 264-1057 to schedule a consultation.

This article provides general information about Louisiana succession law and is not legal advice for your specific situation.

When Multiple States Are Involved

It is common for Louisiana families to deal with successions that span multiple states. A parent who spent their working years in Louisiana may have retired to Florida or Texas. An out-of-state will that was valid where executed will be recognized in Louisiana, but the succession itself must still be opened in the parish where the Louisiana property is located.

Families dealing with assets in two or more states should work with an attorney who understands both the Louisiana succession process and how ancillary probate in Louisiana interacts with a primary probate opened in another jurisdiction. Contact Scott Law Group — Estate Counsel or call (504) 264-1057 to discuss cross-state succession matters.

The General Rule: Out-of-State Wills Are Valid in Louisiana

Louisiana law recognizes and will probate wills that were validly executed under the laws of another state or country. La. R.S. 9:2401 establishes that a written will is valid in Louisiana if it was executed in conformity with the law of the place where it was made, or the law of the place where the testator was domiciled at the time of execution. The mere fact that a will does not meet Louisiana’s specific formal requirements does not invalidate it — as long as it was properly executed where it was made.

This means a Texas will with two witnesses (meeting Texas requirements), a Florida will prepared by a Florida attorney, or a will from another country can all be probated in Louisiana courts if the decedent owned Louisiana property. The Louisiana court applies Louisiana succession procedure to probate the will, but the will’s validity is assessed under the law of its origin.

What Louisiana Law Still Controls Even for Out-of-State Wills

Recognizing a foreign will’s validity does not mean Louisiana’s substantive succession laws are suspended. Critical Louisiana rules apply regardless of where the will was drafted:

• Forced heirship. Louisiana’s forced heirship law protects children under age 24 and permanently incapacitated children of any age. A will from Florida or Texas that attempts to disinherit such a child cannot do so with respect to Louisiana property. The forced heir’s legitime (minimum protected share) remains enforceable against Louisiana assets even if the will was drafted to avoid forced heirship under another state’s law (which has no forced heirship).
• Community property characterization. How property is characterized as community or separate — and how the surviving spouse’s interests in that property are analyzed — is governed by Louisiana law for Louisiana-sited property and for property that was community property under Louisiana law during the marriage. An out-of-state will that purports to leave community property outright to someone other than the surviving spouse may conflict with the surviving spouse’s community property rights.
• Louisiana succession procedure. The mechanics of the succession proceeding — filing in the correct parish, providing inventory or descriptive lists, obtaining a Judgment of Possession — are governed by Louisiana procedure regardless of where the will was made.

Practical Steps for Probating an Out-of-State Will in Louisiana

The process for probating a foreign will in Louisiana requires additional steps compared to a will executed in Louisiana:

• Obtain an authenticated copy of the will. If the will has already been probated in another state, the Louisiana court will need a certified, exemplified, or apostilled copy of the will and the foreign letters testamentary or administrative. The court in the other state can provide certified copies for this purpose.
• Establish the will’s validity under foreign law. Your Louisiana attorney may need to present an affidavit or expert testimony establishing that the will was validly executed under the law of the state where it was made. For common U.S. state wills, Louisiana courts are familiar with typical execution requirements. For international wills, additional proof may be required.
• Apply for recognition and probate in Louisiana. A Louisiana attorney files a petition in the appropriate Louisiana parish court requesting recognition of the foreign will and authorization to administer the Louisiana assets. The court reviews the authenticity of the will and the proof of foreign-law validity before ordering probate.
• Coordinate with the primary succession. When the decedent had both out-of-state and Louisiana assets, the Louisiana proceeding (for the Louisiana assets) and the out-of-state proceeding (for all other assets) must be coordinated by attorneys in both jurisdictions. Timing, asset inventories, and debt resolution all require careful coordination to avoid gaps and overlaps.

The General Rule: Louisiana Recognizes Wills That Were Valid Where Made

Louisiana law follows the broad principle of will validation that exists throughout the United States: a will that was validly executed under the laws of the jurisdiction where it was made — whether another state or a foreign country — is generally recognized as valid in Louisiana for the purpose of passing the testator’s Louisiana property. This principle prevents the harsh result that would occur if a will that was perfectly valid under the laws of one state could be invalidated simply because the testator later moved to Louisiana or owned property in Louisiana at the time of death. A testator who executed a will in California, then retired to Louisiana without updating their will, does not lose the benefit of their testamentary planning simply because Louisiana’s formal requirements differ from California’s — as long as the will met California’s requirements at the time of execution, Louisiana will generally recognize it as valid.

The source of this validation principle in Louisiana law is Civil Code article 1577 and related provisions, which state that a testament is valid as to form if it complies with the form requirements of the place where it was executed, the law of the testator’s domicile at the time of execution, or the law of Louisiana. This three-pronged validation standard is deliberately broad — a will that meets any one of these three standards is valid in Louisiana as to its formal requirements. This means that the large majority of wills executed in other states will satisfy at least one of these prongs: the common law witnessed will (typically signed before two witnesses with a self-proving affidavit) is valid in most states and will be recognized in Louisiana even though Louisiana’s standard form is the notarial will executed before a notary and two witnesses.

The distinction between formal validity and substantive validity is important for Louisiana heirs dealing with an out-of-state will. Louisiana’s recognition of the foreign will’s formal validity does not mean Louisiana applies the law of the foreign state to determine who inherits or what the testator’s words mean. The substantive law of Louisiana — including the community property rules, the forced heirship provisions, and the rules of interpretation that determine what ambiguous testamentary language means — applies to the foreign will when it is probated in Louisiana. A will executed in a common-law state that purports to give “all my property” to the surviving spouse may be subject to forced heirship claims in Louisiana that would not exist in the state where the will was made, because Louisiana applies its own forced heirship law regardless of the will’s geographic origin.

How Louisiana Courts Evaluate and Probate Out-of-State Wills

When an out-of-state will is presented for probate in Louisiana, the succession attorney must demonstrate to the court that the will satisfies one of the three validation standards — that it complied with the form requirements of the place of execution, the testator’s domicile at the time of execution, or Louisiana law. For a will executed in a common-law state, this typically requires obtaining and presenting to the court the relevant statutes of the state where the will was executed, to show that the will’s formal requirements (signature, witnesses, notarization if required) met the standards of that state. The court examines the will’s execution clause and attestation language to confirm that the required formalities appear on the face of the document, and the succession attorney may present an affidavit from a licensed attorney in the state of execution confirming that the will was properly executed under that state’s law.

The self-proving affidavit that is attached to wills executed in many common-law states plays an important role in Louisiana probate proceedings involving out-of-state wills. This affidavit — typically executed at the same time as the will, signed by the testator and the witnesses before a notary public — constitutes proof of the will’s proper execution without requiring the witnesses to testify at a probate hearing. Louisiana Code of Civil Procedure article 2891 provides a mechanism for recognizing a foreign will that is self-proved under the law of the state where it was executed, allowing it to be admitted to Louisiana probate without separate witness testimony. When the out-of-state will includes a properly executed self-proving affidavit, the Louisiana probate proceeding is significantly more straightforward than when witness testimony must be obtained.

Out-of-state wills that omit certain provisions common in Louisiana estate planning — the appointment of an executor with broad powers, the waiver of bond and inventory requirements, specific provisions for forced heirs — may result in a Louisiana succession that is more burdensome and expensive than it needed to be. A will that does not appoint an executor leaves the court to appoint an administrator, who may be required to post a bond. A will that does not waive the inventory requirement may require a formal inventory of all estate assets before the estate can be administered. A will that does not specifically address forced heirship — either satisfying the forced portion or including language that attempts to limit it — creates potential for forced heirship challenges that a Louisiana estate planning attorney would have addressed proactively. These gaps in out-of-state wills are not legal defects, but they create procedural burdens that the succession attorney must work around.

Planning Ahead: Making Your Will Work Across State Lines

Louisiana residents who have wills drafted in other states — because they moved to Louisiana after executing a will elsewhere, or because they regularly spend time in multiple states — should have a Louisiana succession attorney review those documents to confirm they will work as intended under Louisiana law. The review should address the formal validity questions (does the will meet one of the three validation standards?), the substantive questions (does the will account for Louisiana’s community property and forced heirship rules?), and the practical questions (does the will grant the executor the powers needed to administer the estate efficiently?). This review is typically much less expensive than drafting a new will from scratch, but it may reveal the need for a new Louisiana will or a codicil that supplements the existing document with Louisiana-specific provisions.

Persons who divide their time between Louisiana and another state face the additional question of which state’s law governs their will. The answer depends on where they are domiciled — their permanent home, where they intend to remain — at the time the will is executed and at the time of death. A person who considers Louisiana their primary home but spends winters in Florida is domiciled in Louisiana, and Louisiana law applies to their succession for all Louisiana property regardless of where they winter. A person who genuinely divides their time equally between two states, maintains a residence in each, and has not clearly established one state as their permanent home may face a domicile dispute that complicates the succession. A Louisiana estate planning attorney can advise on how to establish and document Louisiana domicile unambiguously, which is the most effective way to prevent this uncertainty from becoming a succession problem.

For non-residents who own Louisiana property — a vacation home, an investment property, or inherited real estate — the primary succession will be in the state of the owner’s domicile, but an ancillary succession will be required in Louisiana for the Louisiana property. A non-resident who drafts their primary will with an attorney in their home state should inform that attorney of the Louisiana property so that the primary will can be drafted to work efficiently with the Louisiana ancillary proceeding. This coordination may include granting the executor broad powers to manage property in multiple states, waiving bond requirements that would apply in Louisiana, and addressing the tax implications of the Louisiana property in the overall estate plan. The goal is a primary will that serves both the home-state succession and the Louisiana ancillary proceeding without requiring separate instruments for each jurisdiction.