Sub-trust and Wills for Louisiana FAQs | Wealth.com Knowledge Base

What is a Will?

Your Will (often called a “Last Will & Testament”), once properly executed, directs how your assets will be distributed to your beneficiaries upon your death. Your Will also names decision-makers, such as an executor, guardian, and trustee to carry out your wishes. Before your estate can be administered, your Will must be approved by a court through a process called probate (referred to as “succession” in Louisiana).

Is there a difference between a Will and a Testament?

No. These days, the terms can be used interchangeably.

Why is a Will my only option in Louisiana?

Wealth.com offers Louisiana residents the ability to create a last will and testament on the platform. Although revocable trusts are permitted under Louisiana law, the civil law system and relatively simple probate process (referred to as “succession” in Louisiana) make wills the most common estate planning vehicle for residents.

If you are interested in creating a revocable trust or have one that you would like to amend and restate, we encourage you to consult with a Louisiana attorney in our attorney network which you can do by navigating to the Help tab in your portal and selecting Consult an Attorney under Additional Resources.

How is Louisiana Estate Planning Law Unique?

Key Differences in Louisiana Estate Planning

Civil Law vs. Common Law System: Unlike the rest of the United States that relies on common law precedents, in addition to statutes and regulations, most of Louisiana’s laws are codified statutes.
Forced Heirship: One significant difference between Louisiana law and the law of other states is the concept of forced heirship. Forced heirship dictates how a deceased person’s property must be distributed, regardless of the wishes a person expresses in a will or revocable trust. A forced heir under Louisiana law generally includes any child who is under the age of 24. However, the law also includes children of any age who have a mental or physical condition that prevents them, or could prevent them, from being able to care for themselves in the future. It can also include a grandchild if that grandchild’s parent predeceases the deceased person and certain conditions apply.

Louisiana Trust Code: Another distinctive aspect of Louisiana estate planning is a difference between the Louisiana Trust Code and the Uniform Trust Code followed by many other states in the United States. Louisiana trusts must follow specific formalities unique to Louisiana. Trusts governed by the Louisiana Trust Code can also be more restrictive than trusts governed by other states, including requirements regarding “ascertainable beneficiaries” and limitations on how and when trusts can be modified or terminated after creation.

What do you mean by “full legal name”?

This is your name as it appears on the identification document you would use if a notary public needed to verify your name. It is important to use this name for a Will, which is a legal document.

Does it matter if I have used other names or variations on my legal name?

If you have used, or currently use, other names (for example, a maiden name) or variations on your full legal name (for example, a nickname), consider telling us by adding them as “aliases” in your contact card. This is especially important if you own valuable or important assets, such as a retirement account or digital photographs, under those names. We will include your aliases in your Will.

What if I am about to move?

Moving to a different town/city within the same state will not affect the validity of your Will, and you do not need to update your Will just to change your address. You should, however, update your Will after you move to a different state to make sure it reflects local laws. If you don’t update your Will after your move it will still be valid, but it may not account for nuances in your new state’s laws. Therefore, it is usually best to create a new Will for the state where you currently live.

What if I split my time between two places?

Your residence will determine which state’s laws will govern your Will, and you should select the state where you have your closest connections, such as family, a home you own (vs rent), driver’s license, voter registration, primary care physician, or where your children go to school. Note that choosing a state for your Will may have implications for your state income tax filings, and you should consult with a CPA or attorney if you have any questions about which state to choose.

Why do you need to know my marital status?

Your marital status is relevant to your family structure and in determining your potential beneficiaries. Certain states may also protect a spouse (or partner in certain other qualifying legal relationships) by guaranteeing that person certain rights over your assets when you pass away.

What if I have a partner of many years, but we are not legally married or in any other legally recognized relationship?

Your legal status must be accurately described in your Will, and you should consider selecting “Other Committed Relationship” (even if in your daily life, you may call each other “husband,” “wife” or “spouse”). Your Will may be the only way you can provide for your partner upon your death. If your relationship is not legally recognized, your partner may not get the same rights over your estate as a spouse would.

You and your partner can proceed with estate planning as a couple. Note that in the remainder of this workflow, if you are not in a legally recognized relationship with your partner but want to leave assets to your partner, the word “spouse” applies to your partner.

You should consult with a lawyer if you have any questions about your marital status or other concerns about your legal rights.

I am currently engaged. Should I wait to make my will?

Many people consider creating or updating their will when they are contemplating marriage. An estate plan is an effective way to provide for your loved ones and clearly spell out your future spouse’s rights in relation to your other beneficiaries. However, depending on your state, your future spouse may end up with more rights over your assets at your death than those you have indicated through a will. We recommend creating your will today, and updating your will after your marital status changes.

Many people who have these concerns will create not only a will, but also a prenuptial agreement, to ensure that their fiances' rights as a decision-maker or beneficiary at their death are clear from the outset of marriage.

I am currently separated or thinking of separating from my spouse. Should I wait to make a will?

It is important that you correctly identify your marital status at the time you create your Will; you should not select “single” in this workflow if you are still married. After your marital status changes, you should update your Will.

In thinking through naming your trusted decision-makers and to whom your assets will be distributed, we recommend that you indicate your wishes as they are today, but be aware that a decedent’s spouse may end up with more rights over the decedent’s assets than those provided by the decedent’s will. You should consult with an attorney if this applies to you.

I am expecting a child or about to adopt a child. Should I wait to make a will?

People often assume they should wait until after the child is born to create a will, but oftentimes, it is better to get the estate plan in place before the child arrives. It is important that your children be provided for in case something happens to you – there is no need to wait to make your will.

A will can be “future-proofed” so that distributions of assets to your children will automatically include any “after-born” children (i.e., children born to you or adopted by you after you execute the will). As you proceed through this workflow, to better “future proof” your will, be sure to select the options that provide for after-born children and avoid those that do not. For example, you should consider selecting the box on this page to include after-born children.

I don’t have any children now, but could in the future. What should I be aware of?

You can take one of two approaches. Which is right for you depends on (1) how likely you are to update your will once you have your first child and (2) how important it is to you that you choose your beneficiaries today, before you have any children, because the default law does not reflect your wishes. For most people, we recommend making this will to address who you want your beneficiaries to be if something were to happen to you today and update your will once you have a child.

If you do not have a will right now, the laws of your state of residence will determine your heirs at law. Each state has a default hierarchy of family members who might be your heirs, based on who is living at the time of your death. For example, if you do not have children yet, a default hierarchy may be that your spouse will be your heir, followed by your parents, followed by your siblings, followed by your nieces and nephews. You should consult an attorney to understand who your heirs at law may be.

If you prefer a different order or want to choose a beneficiary outside your family (such as a charity), we recommend that you customize your will to reflect your preferences if something were to happen to you today, rather than at a later date when you might have children. You can always update your will when you have a child.

Who I consider to be my children is a bit complicated. How should I answer this question?

This list is not necessarily about the people who you refer to as your “children” in your daily life. For purposes of your will, who you indicate to be your “child” will determine the entire class of individuals who will receive your assets when you direct your executor to distribute assets to your “children.”

For example, later in this workflow, you may be asked if you would like to distribute what is left of your assets (the “residual estate”) to your children in equal or unequal shares. By including someone as your child on this page, you are including that person among the people who will be receiving a share of your residual estate. Note that outside of the residual estate, you can still make a specific gift (for example, of a fixed amount of cash or a meaningful personal object) to a person that you do not list as a child.

Louisiana law also affords special rights to your legal children under the law, so we also recommend that you speak with an attorney if you have a unique family situation or have any questions about your family structure for purposes of your will.

I have step-children. Should I list them here?

It depends on whether you would like to treat a step-child the same way as your biological (or adopted) children when distributions of assets are made. For more information, read the question “Who I consider to be my children is a bit complicated. How should I answer this question?” [Engineering: link to previous question]

For example, if you have a biological daughter and a step-son, you may feel that your step-son should share in your residual estate along with your daughter. To include him, you should list him here as a child. On the other hand, if you want your residual estate to go only to your daughter, then you should not list your step-son here. Note that you can still make a specific gift (for example, of a fixed amount of cash or a meaningful personal object) to your step-son if you would like to leave him something before your residual estate is distributed to others.

We recommend that you coordinate your estate plan with the other parent and consult with an attorney.

Why do you need a child’s date of birth?

Because a descendant may often acquire greater property rights upon attaining a certain age, your will should provide the date of birth to help your executor (or trustee) administer your assets more efficiently.

Specifically, Louisiana law includes a concept called “forced heirship,” which entitles children under the age of 24 to a certain portion of a parent’s estate. By including your child’s date of birth, we will know whether forced heirship might apply to you and your family situation and, if appropriate, address it in your documents.

My child has predeceased me. What should I be aware of?

We know that it may be important to you to name the child in your will even if your child has passed away. You should feel free to list that child on this page.

For purposes of this workflow, note that the will automatically takes into account the death of a child if you choose to leave your remaining assets to “your children.” The will directs the share that your child would have received first to any surviving descendants of that child (i.e., your grandchildren from that child), or, if that child has no surviving descendant, to your other surviving children.

Note that if a child who has predeceased you left surviving children, those children could be considered “forced heirs” of your estate. To learn more about forced heirship, please read about forced heirship below.

I consider my pets to be my children. Is this where I provide for my pets?

No, please do not list your pets on this page. But we know your pets are important! You will have the opportunity later in this workflow to tell us if you have pets, and to choose individuals to take your pets and leave a specific sum of your assets to the individual who takes care of your pets, in the event something were to happen to you.

What is Forced Heirship?

Forced heirship is a legal concept unique to the state of Louisiana in the United States. Forced heirship requires that certain qualifying family members (generally children under the age of 24 at the time of a decedent’s death and children with qualifying special needs) receive a portion of their deceased parent’s estate, regardless of what the decedent has stated in a will or other testamentary document.

The forced portion that is set aside for forced heirs is referred to as the “forced portion” or “legitime.”

Who is considered a “forced heir”?

A Louisiana resident is considered to have a “forced heir” if, at the time of their death, that person has a child who (i) is the age of 23 years or younger, or (ii) because of mental incapacity or physical infirmity, is permanently incapable of taking care of themselves. It could also include a child with an inherited incurable disease documented at the time of death that could make them incapable of caring for themselves in the future.

In some circumstances, a grandchild can also be a forced heir if that grandchild’s parent predeceases the decedent and either (i) the predeceased parent would have been under the age of 24 at the time of decedent’s death if still living; or (ii) the surviving grandchild is permanently incapable of taking care of themselves at the time of death of the decedent.

Note that forced heirship laws do not include stepchildren unless they have been formally adopted.

What kinds of special needs might make my child qualify as a forced heir?

A child or descendant might qualify as a “forced” heir because of certain disabilities that could make themselves unable to support themselves at the time of your death. These conditions are not specifically defined under Louisiana law, but include those conditions that make child or descendant permanently incapable of taking care of their person or administering their estate at the time of the decedent’s death because of a physical or mental infirmity, or an inherited, incurable condition, supported by medical records, that may render them incapable of taking care of their person or estate in the future.

What property is included in the ‘forced portion’”?

The portion reserved for the forced heirs is called the forced portion and the remainder is called the disposable portion. To determine the forced portion of a decedent’s estate, all of the property belonging to the decedent at the time of death is considered, but subject to adjustments for costs of the estate and gifts made within three years of death. Certain property is excluded from this calculation, including amounts held in individual retirement accounts, profit sharing plans, governmental retirement plans, and other such accounts, as well as insurance proceeds payable on the deceased’s life and premiums paid by the deceased for such policy.

If a person dies with one child or grandchild who is considered a “forced heir,” one quarter of the decedent’s property is set aside for the forced heir. The forced portion increases to one half of the decedent’s property if the decedent has two or more children or grandchildren who are considered forced heirs.

Note that the amount of the forced portion cannot exceed the amount of the decedent’s estate that the forced heir would receive by law if the decedent died without a will. If that’s the case, the forced heir would only be entitled to receive their intestate share.

What are the consequences of listing a person as an “excluded family member”?

By adding a person in this list, the generated form will include an explicit statement that you have intentionally chosen not to leave any assets to that person and that that person should be treated as though no longer living at the time of your death. In effect, this prohibits the person from inheriting from your assets or serving in a trusted role.

What should I do if I also worry about this family member managing my estate?

Do not name that person in any of the decision-making roles in your will, such as executor or guardian. However, there is a remote chance that this person could still be named to a role, either by your executor or a beneficiary of your will.

If I list a family member here, will that stop the person from being able to contest my will or sue for more assets?

No, that family member still has the power to bring a claim against your estate through the probate process. However, by listing that family member on this page, you may improve the chance that the court will find that you carefully considered who should be your beneficiaries and intentionally provided as you did for that family member in your will.

Imperfect methods exist to lessen a person’s incentives to sue your estate, such as so-called “no contest clauses,” which we plan on offering to our users at a later date. However, even these methods may not deter a motivated litigant.

Can I disinherit my child?

If a child is under the age of 24 or permanently unable to take care of themselves or may, because of an incurable disease, become incapable of caring for themselves in the future, they would be considered a “forced heir” under Louisiana law. Parents are unable to disinherit forced heirs unless they have “cause” under Louisiana law. If you would like to disinherit a child who might be considered a forced heir, you should consult with a local attorney to discuss your options.

What happens to pets when someone passes away?

Usually, the executor will figure out if anyone among friends and family will take the pets. If someone cannot be found, then it is likely the pet will be surrendered to an animal shelter or other organization. Because pets are usually considered “property” under the law, the pets themselves cannot receive assets. If you would like to plan for your pets in case something happens to you, you will have the opportunity in this workflow to select individuals who might take your pets and to leave a certain sum to that individual.

I have a child with special needs. What should I be aware of?

It is important to consider how you are leaving assets to a child who has special needs. For example, consider naming at least one guardian, even if your child is already an adult. Having a child or other descendant with special needs also raises additional considerations under the concept of forced heirship. Your child might be entitled to a share of your estate under the rules of forced heirship regardless of their age. Because receiving significant assets from your estate, even in trust, can affect your child’s eligibility for government benefits, we highly recommend that you consult with an attorney with the relevant expertise to help you make the best decision for you and your family.

I have frozen genetic material (for example, frozen embryos). What should I be aware of?

It is important to have a plan for what happens to your frozen genetic material. If you do not have a plan in place, ideally in writing, knowing what to do with the genetic material may be a very difficult decision for your executor and family (both from moral and religious perspectives). It may also potentially affect who is a beneficiary of your estate. Any of these may cause conflict within your family.

In this will, we will provide default guidelines, but we highly recommend that you leave separate written instructions in case these default provisions do not reflect your wishes. In the will, you will name a person to handle this genetic material so you have a default decision-maker in place. This person may be the executor, but may be someone else who is more familiar with your child-bearing and child-rearing decisions. In the will, as a default, this person will be given broad powers to decide what to do with your genetic material, except to use it to create offspring.

If this does not reflect your wishes, we highly recommend that you leave separate written instructions, either with the fertility clinic or storage facility, and attach a copy to your estate plan, on what can be done with this genetic material. Those separate written instructions will override the provisions in this will, regardless of whether they were written before or after the creation of the will.

Should I be worried about estate taxes?

You should find out if you are subject to the federal estate tax and to any state estate tax.

The federal estate tax is imposed at 40% on assets in your taxable estate that exceed the federal exclusion amount, which is $15 million in 2026 (and adjusted for inflation annually).

Also, if you have made taxable gifts (i.e., large gifts exceeding the annual exclusion amount, which is currently $19,000), you may already have utilized some, or all, of the exemption amount that is available as a credit against the federal estate tax.

You should also consider whether any state where you own significant property has a state estate tax. Many states have exemption amounts that are significantly lower than the federal exemption amount. Some states may have exemption amounts as low as $1 million.

If you believe you may have a taxable estate, either at the federal or state level, you should consider consulting with an estate planning attorney regarding the implications of these taxes to your particular situation.

When is the option “To my spouse if living, otherwise to my children” particularly appropriate?

This is the most common option for someone who:

Is married (or in a legal relationship that is recognized by the state as equivalent to marriage for inheritance purposes), and
Has children, or is expecting a child or adopting a child (or has more remote descendants, such as a grandchild), and
Is comfortable with distributing the residual estate, which could be the bulk of the assets, to the spouse if the spouse survives

If you plan on leaving assets for your children in trust, this option will achieve consistent outcomes for when assets are distributed to your child regardless of whether your spouse predeceases you.

If you do not have any immediate plans to have a child, consider whether Option 2 (“To my spouse if living, otherwise to custom beneficiaries”) or Option 4 (“To custom beneficiaries”) is better for you.

When is the option “Directly to Children” particularly appropriate?

This is the most common option for someone who:

Is not married (either single, divorced or widowed), and
Has children, or is expecting a child or adopting a child (or has more remote descendants, such as a grandchild)

This option may also be appropriate for someone who is comfortable not passing any assets to a spouse (or partner in certain other qualifying legal relationships), even if the spouse survives. For example, the spouse may be independently wealthy or otherwise provided for, or the spouses may be separating or divorcing in the near future.

When is the option “Directly to Children” particularly appropriate?

This is the most common option for someone who:

Is not married (either single, divorced or widowed), and
Has children, or is expecting a child or adopting a child (or has more remote descendants, such as a grandchild)

When is the option “To my spouse if living, otherwise custom beneficiaries” particularly appropriate?

This is a common option for someone who is married (or in a legal relationship that is recognized by the state as equivalent to marriage for inheritance purposes) and does not have children and does not plan on having children in the near future. This option might also be a good option for someone who has children, but wants to leave a share of their residuary estate to beneficiaries other than their children.

The types of beneficiaries you may include through this option are individuals, charities and donor-advised funds. You will specify percentages of your residual estate to be distributed to these beneficiaries.

If you are not able to leave your assets to your intended beneficiaries by using this form, you should consult an attorney.

When is the option “To custom beneficiaries” particularly appropriate?

This is the best option for someone who wants to include a primary beneficiary (i.e., someone who inherits from your estate immediately upon your passing) who is not a spouse or child.

If you are not able to leave your assets to your intended beneficiaries by using this form, you should consult an attorney.

What are the potential pitfalls of each option?

There are some potential pitfalls that you should be aware of.

First, you can leave a gift in trust for a beneficiary only if it is for your spouse (i.e., a “Marital Trust”) or descendant (a “Trust for Descendant”). A trust that is created through your estate plan at death allows you to name someone other than the beneficiary to manage the assets. It also gives you some level of control over who receives the assets at the primary beneficiary’s death (i.e., the beneficiary who receives assets first at your death), but this is limited by Louisiana law. For example, any person who is considered a “principal beneficiary” of the trust (meaning, someone who is entitled to the trust principal), has a vested interest in the trust property and the trust assets cannot be directed away from them or their heirs or legatees except under certain circumstances. If you have any questions about how Louisiana trust law impacts your estate plan, we suggest consulting with a Louisiana attorney.

Second, any option where you choose “custom beneficiaries” will not automatically include any child born to you or adopted by you after the creation of your estate plan. In other words, if you choose to pass your residuary estate either “to my spouse, if living, otherwise custom beneficiaries” or “to custom beneficiaries,” please update your estate plan through this workflow to provide a specific share for any new children.

Third, if you select “To my spouse if living, otherwise to custom beneficiaries” or “To custom beneficiaries” and elect to include both a Marital Trust for your spouse and Trust for Descendant for a child or more remote descendant, there will be inconsistencies in your document on whether your child receives their share in trust based on if your spouse survives you. Specifically, if your spouse fails to survive you, your child will receive their residuary share in trust under the selections you make in this workflow. However, if your spouse survives you and receives their share in a Marital Trust, at your spouse’s death your child will receive their share outright. Selecting “To my spouse if living, otherwise to my children” will result in a child receiving their share in trust regardless of whether your spouse survives you.

Lastly, we cannot guarantee that your selections will necessarily lead to your intended result as to how your assets will ultimately be distributed. For example, a certain gift or share may lapse, in which case default provisions in the trust or in statutes will indicate how that gift will be reallocated. Review the examples under each option and the will prepared for you through this workflow carefully. Note that the information provided throughout the workflow, including FAQs and diagrams, are informational only and designed to assist you in filling out a self-help form. They do not guarantee results as to how your assets will be distributed.

If you are not able to leave your residual estate to your intended beneficiaries by using this form, you should consult an attorney.

Will my descendants other than my children be taken into account?

Yes, all your descendants (such as grandchildren) are taken into account whenever a gift is directed to your child, but your child predeceases you. Your will provides a default hierarchy of beneficiaries in that event. For example, if a child predeceases you, the share of the residual estate set aside for that deceased child will first be distributed equally among that child’s children (i.e., your grandchildren). If there are no grandchildren, then the share will be distributed among your surviving children. If none of your children survives you, but you have grandchildren, then your residual estate will be distributed in equal shares among your grandchildren.

A child predeceased me. Which option is right for me?

The answer depends on whether your child who passed away is survived by descendants (i.e., whether you have grandchildren from that child) and whether you want those descendants to receive the share that would have gone to the child at your death.

If that child does have descendants and you would like them to inherit your child’s share of your estate, you should consider Option 1 (“To my spouse if living, otherwise to my children”) or Option 3 (“To my children”). Under those options, make sure to allocate a share to the child who has passed away so that those grandchildren will be taken into account automatically.

If that child does have descendants and you do not want them to inherit from you (or a share different than what you would have given to your child, had your child still been alive), you should consider Option 2 (“To my spouse if living, otherwise to custom beneficiaries”) or Option 4 (“To custom beneficiaries”).

If your child did not leave a descendant, consider not naming that child as a beneficiary under any of the options so as not to create confusion when your estate plan must be carried out.

How are heirs at law relevant to my will?

Your heirs at law are the individuals who would inherit your estate if you were to pass away without a will. If any assets from your estate remain undistributed after giving effect to all the provisions of your will, those assets will still be distributed to your heirs at law.

The laws of your state of residence will determine your heirs at law. Each state has a default hierarchy of family members who might be your heirs, based on who is living at the time of your death. For example, if you do not have children yet, a default hierarchy may be that your spouse will be your heir, followed by your parents, followed by your siblings, followed by your nieces and nephews. You should consult an attorney to understand who your heirs at law may be.

I would like to leave my assets in unequal shares among my children. What should I be aware of?

By indicating specific percentages, your will does not automatically account for any child who is born to or adopted by you after you create your will.

If a share lapses because it cannot be distributed to that child (or any of that child’s descendants), that lapsed share will automatically be reallocated pro rata among the non-lapsed shares. For example, if you specified that you would like to leave 50% to one child and 25% to each of your two other children, and one 25% share lapses, then that share will be reallocated so that the first child receives a two-third share and the second child receives a third share.

We recommend that you review your will periodically. If you are not able to leave your residual estate to your intended beneficiaries by using this form, you should consult an attorney.

What if I want to leave a fixed sum and not a percentage of my assets to my child or someone else?

You will have the opportunity to leave a specific sum as a specific gift to your child or other person later in this workflow. This part of the workflow concerns your residual estate only.

What if I don’t want to leave a specific percentage, but a fractional share to my children?

Currently, we have not enabled this feature but plan on enabling it in the future. Consider converting the fractions to percentages, rounded to the nearest hundredth. If you are not able to leave your residual estate to your intended beneficiaries as you wish by using this form, you should consult an attorney.

I have a minor child. Will someone help that child manage these assets?

To provide a more robust vehicle to manage a minor’s assets, you will have the option to include “trust for descendant” to receive any assets from your estate that would otherwise be distributed to a young beneficiary under a specified age. To learn more about this trust, see “What are the key terms of the Trust for Descendant?”

Will my descendants other than my children be taken into account?

A child predeceased me. What should I be aware of?

If that child does have descendants and you would like them to inherit your child’s share of your estate, this Option for distribution may be appropriate for your plan. You should allocate a share to the child who has passed away so that those grandchildren will be taken into account automatically.

If that child does have descendants and you do not want them to inherit from you (or a share different than what you would have given to your child, had your child still been alive), you should consider going back through the workflow and selecting either Option 2 (“To my spouse if living, otherwise to custom beneficiaries”) or Option 4 (“To custom beneficiaries”).

If your child did not leave a descendant, consider not naming that child as a beneficiary in this part of the workflow so as not to create confusion when your estate plan must be carried out.

What are the potential pitfalls of specifying percentage shares instead of choosing “to my spouse, then my child?

First, by indicating specific percentages, your trust locks into place who the beneficiaries will be once you pass away (i.e., the people who would first receive assets if something were to happen to you and your spouse predeceases you or the people who would receive assets after both you and your spouse pass away if you choose to leave assets to your spouse in trust). For example, if you intended to distribute your residual estate equally among your children plus a charity, your trust does not automatically add any child who is born to or adopted by you after the creation of your trust. If you do not update your estate plan after the arrival of that child, that child may be left out of the distributions of your residual estate.

Second, if a share fails, that share may not be re-distributed in the way you intend. For example, a share will fail if the beneficiary is an individual who passed away before you and left no descendants, or the beneficiary is a charity that no longer qualifies as a charity. Depending on Louisiana law, a lapsed share may be distributed to the deceased beneficiary’s heirs or legatees or could be reallocated pro rata among the non-lapsed shares.

After completing this workflow, you should review your trust carefully to confirm it matches your expectations. You should also review your trust periodically after signing. If you are not able to leave your residual estate to your intended beneficiaries by using this form, you should consult an attorney.

What is the difference between allowing vs not allowing my primary beneficiary’s descendants to receive the share, if my primary beneficiary passes away before me?

If one of your chosen primary beneficiaries passes away before you, you can choose whether you would like that person’s descendants to receive the share.

If you would like that person’s descendants to receive the share, the share will be re-allocated among those descendants following the default hierarchy (i.e., children, followed by grandchildren).

If you do not want that person’s descendants to inherit the share (or if that person passes away without descendants), then the share will be reallocated pro rata among your other chosen beneficiaries whose shares have not failed. Note that if the beneficiary is set to receive a share after your spouse receives it in trust, you may have limited control over reallocating a deceased beneficiary’s share among beneficiaries other than the deceased beneficiary’s descendants under Louisiana law. If you have any questions about how contingent beneficiaries might work under your will, we encourage you to consult a Louisiana attorney.

What happens if a gift to a charitable beneficiary fails?

A distribution to a beneficiary that is a charity will only fail if the charity no longer qualifies as a tax-exempt organization at the time your trustee makes the distribution. This is to preserve tax advantages for your estate and protect your gift from potential misuse. If a percentage share allocated to a charity fails, that share will be reallocated pro rata among the other beneficiaries whose shares have not failed.

What if we want to leave a fixed sum, and not a percentage of our assets, to a child?

You will have the opportunity to leave a specific sum as a specific gift to that beneficiary later in this workflow. This part of the workflow concerns your residual estate only.

What if we want to leave a fractional share, and not a percentage of our assets, to our beneficiaries?

I have a spouse, but choose not to leave any part of my residual estate to my spouse. What should I be aware of?

If you have a spouse and chose not to leave your residual estate to your spouse, we recommend that you consult with an attorney to ensure your intent will be carried out. You may need to consider the implications under succession laws and tax laws to your particular circumstances and whether there exist alternatives that will help you accomplish your objectives.

What are the potential pitfalls of specifying percentage shares to named individuals?

First, by indicating specific percentages to named individuals, your will locks into place who your primary beneficiaries are (i.e., the people who would receive assets directly from your estate if something were to happen to you today). For example, if you intended to distribute your residual estate equally among your children plus a charity, your will does not automatically add any child who is born to or adopted by you after the creation of your will. If you do not update your will after the arrival of that child, that child may be left out of the distributions of your residual estate.

Second, if a share fails, that share will automatically be reallocated pro rata among the non-lapsed shares. This may not be the reallocation you intended. For example, you specified that you would like to leave 50% to your only child and 25% to each of two charities because you wish to distribute only half of your residual estate to your own descendants. If one of the charities no longer qualifies as a tax-exempt organization, that 25% share will have failed and will be reallocated so that your child receives a two-third share and the remaining charity receives a third share.

We recommend that you review your will periodically. If you are not able to leave your residual estate to your intended beneficiaries by using this form, you should consult an attorney.

What is the difference between allowing vs not allowing my primary beneficiary’s descendants to receive the share, in the event my primary beneficiary passes away before me?

If one of your chosen primary beneficiaries passes away before you, you can choose whether you would like that person’s descendants to receive the share.

What happens if a gift to a charitable beneficiary fails?

A distribution to a beneficiary that is a charity will only fail if the charity no longer qualifies as a tax-exempt organization at the time your executor makes the distribution. This is to preserve tax advantages for your estate and protect your gift from potential misuse. If a percentage share allocated to a charity fails, that share will be reallocated pro rata among the other beneficiaries whose shares have not failed.

What if I want to leave a fixed sum and not a percentage of my assets to a beneficiary?

You will have the opportunity to leave a specific sum as a specific gift to that beneficiary later in this workflow. This part of the workflow concerns your residual estate only.

What if I don’t want to leave a specific percentage, but a fractional share to my beneficiaries?

I have a minor child. Will someone help that child manage these assets?

State law provides default ways for someone to take custody of a minor’s assets (commonly referred to as the Uniform Transfers to Minors Act, or similar law). However, those default ways may not be as robust as trusts in allowing the custodian to fully manage those assets, and the custodial accounts may terminate automatically when the minor reaches adulthood. To provide a more robust vehicle to manage a minor’s assets, you will have the option to include a “trust for descendant” to receive any assets from your estate that would otherwise be distributed to a young beneficiary. To learn more about this trust, see “What are the key terms of the default Trust for Descendant?”

What is a usufruct?

Absolute ownership consists of three elements: (1) the right to use or possess property without damaging it (usus); (2) the right to derive income from the property (fructus); and (3) the right to consume, destroy or alienate property (abusus). A usufruct is the temporary right of usus and fructus, meaning the right to use and enjoy property belonging to another person.

Under Louisiana law, a usufruct is a right commonly granted to a surviving spouse when a person dies and the decedent’s children become the “naked owners” of a certain portion of the decedent’s property known as the “forced portion” or “legitime.” The person to whom the usufruct is granted, the surviving spouse, is known as the usufructory and has the lifetime right to use and collect income assets. The decedent’s children are the naked owners of the property subject to the usufruct during the spouse’s lifetime.

A usufruct operates differently depending on whether the property subject to the usufruct is considered a “non-consumable,” like real estate, or a “consumable” like cash. For consumable property, the holder of the usufruct can consume or sell the property, but has the obligation to return things of the same quantity and quality or their value to the naked owner. If this obligation is not fulfilled, the naked owner has little recourse except a possible claim against the holder of the usufruct or the usufruct’s estate (or succession) when the usufruct terminates. For non-consumables, the holder of the usufruct must preserve the substance of the property and return it to the naked owner, though they can use and profit from it. Wealth.com documents also grant the holder of the usufruct the power to sell the property.

Why does my net worth matter?

The federal government currently imposes a tax on all taxable estates that exceed a specific total value. Similarly, many states have their own death tax that is in addition to the federal tax.

The federal estate tax is imposed at roughly 40% on assets in your taxable estate that exceed the federal exclusion amount, which is $15 million in 2026 for an individual (and adjusted for inflation annually). Also, if you have made taxable gifts (i.e., large gifts exceeding the annual exclusion amount, which is currently $19,000), you may already have utilized some, or all, of the exemption amount that is available as a credit against the federal estate tax.

While Louisiana does not currently have a state estate tax, you should also consider whether any state where you own significant property has an estate tax. Many states have exemption amounts that are significantly lower than the federal exemption amount. Some states may have exemption amounts as low as $1 million.

This tax can be substantial for individuals with a high net worth. There are estate planning and estate administration techniques using sub-trusts created through your estate plan that can be used to minimize the taxes your estate might owe and get more into the pockets of your estate’s beneficiaries. In this part of the workflow, you will determine if one of these sub-trusts is appropriate for your situation.

My net worth is close to fifteen million or may be in the near future. Should I select yes?

Use your best judgment when answering this question. If you are relatively close, and believe that your assets will continue to appreciate in value, select “Yes.” This will allow you to enter the part of the workflow that will incorporate sub-trusts into your estate plan for tax planning. If that net worth is a longer term goal, you can select “No” for now, and come back to update your estate plan as your situation changes.

I’m not comfortable indicating my net worth here, but I want to get accurate suggestions for my estate plan. What should I do?

Answering this question will allow us to help indicate what might be the best match for you and to present the option to include sub-trusts in your workflow for tax planning purposes for certain decisions in this workflow. This can make sure you are fully customizing your estate plan, and speed up your overall decision making throughout. However, note that we take the responsibility of using and storing your data very seriously. You can learn more by reading our Privacy Policy. [Engineering: hyperlink to Privacy Policy and ensure when selected it downloads as a PDF in a separate window] and read more about our data security by selecting ‘Is My Information Secure?, which includes the option to opt into MFA.

If my answer to this net worth question changes in the future, should I update my estate plan?

It is best practice to create your estate plan using the most accurate, current information available. You can update your estate plan at any time through your Wealth.com account, and you are encouraged to update your selections if your circumstances change in the future, including your response to this question. If you believe your net worth is relatively close to the number shown, and that your assets will continue to appreciate in value, select “Yes.” If that net worth is a longer term goal, you can select “No” for now, and come back to update your estate plan as your situation changes.

What is considered my “net worth”?

Your net worth is the value of all of the assets you own. This includes accounts, property, household goods, and the death benefit of life insurance policies. Generally, it doesIt may not include assets that you have given away, titled to someone else, or that you hold in an irrevocable trust.

Importantly, this number may be different from your “taxable estate,” which is defined in the Internal Revenue Code and determines which of your assets are actually subject to the federal estate tax. Nonetheless, your net worth is generally a good indicator of whether additional tax planning might be beneficial. If you have any questions regarding the difference between your net worth and your taxable estate, or if you would like additional tax planning guidance, consider scheduling a consultation with an attorney.

What happens if I select “No” if I don't worry that my spouse could disinherit my beneficiaries after I pass away?

If your spouse survives you, by selecting “No,” you are indicating that you are comfortable letting your spouse spend down their inheritance received from you as your spouse wishes, including deciding what happens to your assets through your spouse’s estate plan. If it is important that someone help your spouse decide how to invest or spend the inheritance, or if you want to choose what happens to your assets at your spouse’s death, select “Yes” on this panel. You will have the option to include a Marital Trust for your spouse during your spouse’s life that will direct where any remaining assets should go when your spouse passes away.

What happens if my spouse is not living at the time of my death?

If your spouse is not living at the time of your death, your assets will be distributed in accordance with the selection you made on the panel titled “How Would You Like To Distribute Your Estate?” We will also confirm your selection later in an upcoming panel in this workflow.

Can I choose who gets these assets after my spouse dies?

Yes, by including a special trust in your estate plan document called a Marital Trust. If you select “Yes” on this panel, you will be able to customize a Marital trust in the panels ahead. For clarity, you already made the selection of who would receive the assets from a Marital Trust on the panel titled “How Would You Like To Distribute Your Estate?,” but can return to that panel to update your selection at any time.

Can I give part of my estate to someone other than my spouse?

You can divide your estate as you see fit, including making a fully customized distribution on the panel that follows after you have made your selection on the panel titled “How Would You Like To Distribute Your Estate?” You can also make gifts of cash or specific property in this workflow. Your selection on this panel will relate only to the share of assets going to your spouse.

What is a Marital Trust?

A Marital Trust is a specific type of testamentary trust or sub-trust typically used when estate planning for spouses who are either concerned about estate taxes or who would like to maintain a degree of control over the ultimate disposition of those assets upon the death of the second spouse. This type of trust can provide some flexibility to trustees to protect specific assets and values from estate tax liability until that second spouse passes away.

What are the key features of the Marital Trust?

You should be aware of some key features of the Marital Trust that can be included in your estate plan.

First, only your spouse can be a beneficiary of the Marital Trust during their lifetime.
Second, your trustee will be required to make distributions of any “income” generated by the trust assets (e.g., rent if the Marital Trust owns a rental unit) at least every year, but can do so more frequently if desired.
Third, your trustee (who can be your spouse unless you prohibit your spouse from serving later in this workflow) can make distributions to your spouse to assist with their health, education, maintenance, or support. If the distribution is for any other reason, an independent trustee (who cannot be your spouse) will be appointed.
Fourth, depending on whether you want assets for your children or descendants to remain in trust, the Marital Trust could terminate upon your spouse’s death. To learn more about how remarriage can impact the Marital Trust, see “Can I take away my spouse's Marital Trust if they get remarried?”

Can my spouse act as the trustee of the Marital Trust?

Your spouse can act as trustee of the Marital Trust and decide to make distributions for your spouse’s health, education, maintenance, and support, unless you prohibit your spouse from serving as trustee. If you are concerned about your spouse serving as trustee, either because your spouse will need help managing the inherited assets or because you would like checks and balances for your spouse’s ability to spend the inheritance, you will be able to prohibit your spouse from serving as trustee when you select your trustees later in this workflow.

Note, however, that your spouse will continue to be able to remove and replace the trustee. This is helpful in the event your trustees are unable to serve or do not get along with your spouse.

Can I change my mind and add or remove the Marital Trust at a later date?

If you choose to include the Marital Trust in your estate plan, it will be drafted into your documents, but will not be created until after your death. Thus, you have the opportunity to change your mind. To remove it, simply go through this workflow again to update your documents. That said, this trust will only come into play if your trustees believe there is an advantage to utilizing it, so there is likely no need to complete a new document if your only goal is to remove this trust.

Can I take away my spouse’s Marital Trust if they get remarried?

Not at this time. The Internal Revenue Code provides guidance on the features a trust must have in order to provide tax benefits. Unfortunately, adding this type of restriction can actually limit the benefits your spouse and estate can receive from including this type of trust in the first place. For example, requiring the trust to terminate if your spouse remarries can eliminate the ability for your spouse to receive retirement benefits through a conduit trust provision to allow the stretch of those benefits over your spouse’s life expectancy. For estate tax purposes, this restriction could eliminate the ability to make a qualified QTIP election altogether, and tax could be due before the trust gets funded. Given these risks, we do not currently allow this type of restriction. If adding this restriction is important to you nonetheless, consider reaching out to Support and scheduling a consultation with an attorney to discuss your options.

What happens if my spouse is not living at the time of my death?

Simply put, if your spouse is not living at the time of your death, this trust will never be funded, so it will never exist. If your circumstances have changed due to a major life event, such as a death in the family, it is always a good idea to review your estate plan holistically to see if any changes should be made. If you have any questions about whether an update is warranted, consider consulting an attorney.

I don’t see the option to form a Credit Shelter, Bypass or “B” Trust. Why is that?

This type of trust, often referred to as a Family Trust, Credit Shelter Trust, Bypass Trust, Disclaimer Trust, or “B” Trust, provides the surviving spouse the ability to disclaim a portion of the estate into a trust. This trust can provide creditor protection and flexibility for estate tax planning. We include this trust automatically for all users who leave assets to a spouse so that the flexibility is there to use this trust if it is needed. This trust can work alongside a Marital Trust, if added, to provide protection and flexibility for taxable estates. While this type of trust can be referred to by any of the names above, we use the term Family Trust in our documents.

Can my spouse redirect who receives the assets held by the Marital Trust after their death?

No, your spouse will not have the ability to change the distribution of assets from the people you named on the “How Would You Like To Distribute Your Estate?” panel. Unlike in other states where a testator can grant another person a “power of appointment” or power to designate beneficiaries of property, Louisiana law includes the principle that a person cannot delegate to someone else the right to dispose of their property. There are limited exceptions to this rule and you should consult a Louisiana attorney if you are interested in discussing options that might apply to your situation.

Why is Louisiana Trust Law complex?

Louisiana trust law is complex primarily because the state operates under a unique civil law system (derived from the Napoleonic Code) in contrast to the other 49 U.S. states, which use a common law system. The civil law tradition was historically hostile to the very concept of a trust, which is a creature of common law, and integrating the two systems has created unique complexities.

Louisiana trusts must follow specific formalities unique to Louisiana. Trusts governed by the Louisiana Trust Code can also be more restrictive than trusts governed by other states, including requirements regarding “ascertainable beneficiaries” and limitations on how and when trusts can be modified or terminated after creation, which can limit some of their benefits.

What if one of these beneficiaries is not living at the time of my death?

This trust will only come into play if your spouse is alive at the time of your death. If your spouse is not living at the time of your death, your estate will be distributed to the remainder beneficiaries you selected after choosing your distribution scheme on the panel titled “How Would You Like To Distribute Your Estate?” If any of the beneficiaries are not living at the time of your death, their share will be distributed according to the selection you made, either to that beneficiary’s descendants, or to the other beneficiaries you selected on that page.

I named contingent beneficiaries on the “Distributing Your Assets” panel. Why don’t I see them here?

If any of the beneficiaries are not living at the time the trust terminates, Louisiana law dictates who can receive that beneficiary’s share. Under Louisiana trust law, a beneficiary named here as a vested interest in the trust at the time of your death. If they are not then living, their interest must pass to their descendants or their legatees if that share is considered a “forced share” or legitime under Louisiana law, even if you have named an alternate contingent beneficiary. If they do not have any living descendants, then their share can pass to the named contingent beneficiary or to the other contingent beneficiaries selected on that page.

Who are my descendants?

Your descendants are your children, grandchildren, or any of their offspring. It does not include any of their spouses, your spouse, your siblings, your parents, or other relatives.

Why might someone be concerned about a descendant’s ability to manage their own finances responsibly?

There are a number of reasons you might worry about an individual’s ability to manage their inheritance from you. For example:

-The beneficiary is too young to handle their inheritance

-The beneficiary has substance abuse or gambling addiction issues

-The beneficiary has special needs

-The beneficiary has a lot of creditor issues

-Managing the type of assets that the beneficiary will inherit requires particular skill or knowledge

In addition, you should consider whether the beneficiary should receive their inheritance in a trust to provide protection from creditors (e.g., collecting on a debt or paying the judgment from a lawsuit) or from a former spouse upon divorce.

What if I am concerned because my child has special needs?

If you are concerned about your child’s ability to manage their own finances for any reason, you should select “yes” on this panel. If you have questions specific to special needs planning, you may want to consult with a qualified attorney to discuss how best to design that descendant’s trust with robust provisions to allow the trust provisions to be coordinated with that descendant’s eligibility for government benefits and programs.

What if I am only concerned because my child is still a minor?

If you are concerned about your child’s ability to manage their own finances for any reason, including age, you should select “yes” on this panel.

I think my child may one day gain the ability to manage their own finances. Can I change this selection if that happens?

If you go through the rest of this workflow and decide to create a trust for your child, that trust will be drafted into your documents, but won’t be created until after your death. Thus, you have the opportunity to change your mind. You should always try to plan using the most accurate information you have, both currently and in the future. Use your best judgment when answering this question. If your family situation changes in the future, come back to update your estate plan to match your current needs.

Who is included in my “family?”

Your family includes your descendants (e.g., your children, grandchildren, or any of their offspring). If you no longer have descendants of your own, your assets would next be distributed to your siblings, followed by your nieces and nephews, and then their descendants.

What if I want to help my children protect assets in the event of divorce?

If you are concerned about protecting your assets from your children’s potential creditors or from your children’s spouses in the event of divorce, consider selecting “yes.” You will have the opportunity to customize a trust for those individual descendants later in this workflow, whereby you can specifically protect the assets that your children may eventually receive. If you want to take additional precautions around preventing access by your descendant’s creditors or ex-spouses, consider consulting with a qualified attorney.

If I select yes, am I limiting my descendants ability to make gifts to charity for tax planning or philanthropic purposes?

Selecting yes here will not insert restrictive language into your documents. Instead, it will allow us to suggest “best match” choices elsewhere in the workflow to help you accomplish your stated goals.

What if I have very specific restrictions I want to place on certain family property?

If you proceed through the workflow and do not see the restrictions you are looking for, consider consulting with a qualified attorney to see if additional drafting might be required.

What is a “sub-trust”?

A sub-trust or testamentary is a type of trust that is “created under” another Trust or a Last Will and Testament (or a “trust within a trust”).

A sub-trust continues beyond the period of time that is required for estate or trust administration after your passing; the sub-trust ensures your wishes and objectives are met even long after you are gone. There are many common types of sub-trusts, often contained within wills and revocable trusts, to protect assets for spouses, children, and other beneficiaries. A Trust for Descendant is a sub-trust that benefits a child or grandchild, and allows someone to help the beneficiary manage their inheritance.

Is this sub-trust a separate document from my Last Will and Testament?

No, this sub-trust will be drafted into your Will, and will only come into effect at your death when the beneficiaries of the sub-trust are set to actually receive assets from your estate.

I only need a trust in my documents for tax reasons, but I want my children to enjoy their inheritance as they see fit. Do I need to include a Trust for Descendant?

Trusts for Descendants are set up for three primary reasons: (1) control over assets, (2) tax planning (if a trust lasts for the beneficiary’s lifetime, keeping assets outside your beneficiary’s taxable estate at their death), and (3) asset protection (from creditors and divorce). Even if you trust your children to manage their own financial affairs, the last two reasons may still apply to your situation.

Will my beneficiary always receive assets in trust?

Depending on how you select to distribute your estate, whether your child will receive assets for their benefit in trust could depend on whether or not your spouse survives you.If you elect to include a Trust for Descendant in your Last Will and Testament, assets directed to your child will be distributed to your child subject to the terms of the Trust for Descendant you select in the workflow.

For example, if you select “To my spouse if living, otherwise to my children” (Option 1 on the “How would you like to distribute your estate?” panel) or “To my children if living, otherwise to their descendants” (Option 3 on that panel), any share of your residuary estate will be distributed to your child in trust.

However, if you select either of the options to include custom beneficiaries (“To my spouse if living, otherwise to custom beneficiaries”), your child will receive shares of residuary estate in trust only if your spouse predeceases.

If you cannot achieve your desired result, please contact support so we can connect you with a Louisiana attorney.

When does the Trust for Descendant end?

The Trust for Descendant will end when your beneficiary either reaches a specific age, or dies. You will have the opportunity in this workflow to select the age at which this sub-trust will end. It is especially important to have a Trust for Descendant (and one that terminates only when the beneficiary dies) in the following circumstances:

- You are concerned about your beneficiary's ability to handle their finances regardless of how old they are (e.g., special needs)

- You are concerned your beneficiary could get divorced or could owe money to others, so you would like to keep your beneficiary's inheritance in an asset protection trust.

- You have a net worth approaching or surpassing $15 million. You may pass away with a taxable estate, so your estate plan should form sub-trusts that keep your assets outside of your beneficiaries' own taxable estates

- You own assets that you prefer to stay within the family, like a family business or real estate.

What are the key features of the Trust for Descendant?

You should be aware of some key features of the Trust for Descendant.

First, you can choose which descendants will receive their inheritance from you in trust, but you will be able to customize only one trust, which will have rules that apply to all of those descendants.

Second, a trust will be created and named for a specific descendant (e.g., specifically named for a descendant in the oldest generation if a trust applies to all your descendants), who will be the “primary beneficiary” for the trust term.

Third, your trustee will generally have discretion to make any and all distributions of income and principal to allow for greater coordination in income tax planning with your beneficiaries and to improve any asset protection feature of the trust. However, you can decide to give a one-time withdrawal right over a portion of the trust to the primary beneficiary upon reaching a milestone birthday that you can choose.

Fourth, the trustee (who can be any of your descendants unless you specifically prohibit a descendant from serving) can make distributions to the beneficiaries to assist with their health, education, maintenance, or support. If the distribution is for any other reason, an independent trustee (who cannot be a descendant or someone too closely related to them) will be appointed.

Five, the primary beneficiary can remove and replace the trustee upon attaining a certain age, unless you specifically prohibit giving control to the primary beneficiary.

Sixth, the Trust for Descendant will terminate either when the primary beneficiary dies or upon the primary beneficiary reaching a milestone birthday of your choice. Read “When does the Trust for Descendant end?” [Engineering: provide a link to question 4/8 above on this panel]

Who are considered my descendants for the purposes of creating this type of trust?

Your descendants are your children, grandchildren, or any of their offspring. Descendants do not include any of their spouses, your spouse, your siblings, your parents, or other relatives.

Why would I want to use this trust for all of my descendants if I only have concerns about one of them?

While you may only have one child that is causing you concern right now, our workflow requires that all descendants receive their share in the same manner. This allows for consistency in distribution of a beneficiary’s share under the structure of our Wills and can avoid the appearance of an unfair division of assets or oversight, and reduce resentment amongst your beneficiaries. Your trustees will still be able to work with each child to decide how–and even if–keeping the trust intact serves their interests. If you are not able to achieve your goals within the wealth.com workflow, we suggest that you connect with a Louisiana attorney.

Why can’t I create a Trust for Descendant for someone other than a descendant, like my niece or nephew?

We understand the desire to create a trust for someone other than your descendants. We allow for customization of certain trust terms for lineal descendants, but not for other beneficiaries you name who are not your descendants. That said, if you leave assets to a beneficiary who is under 21 years of age, regardless of their relationship to you, your trustee will be able to distribute the gift to a custodial account under the Uniform Transfers to Minors Act in your state.

If creating a sub-trust for someone other than a lineal descendant is important to you, please reach out to Support.

What happens if my child’s circumstances change after I pass away?

Once the trust is drafted, it will be included in your documents and will be created only after you have passed away. Thereafter, your trustee will have the responsibility to work with your child to make sure your intentions are followed and that the needs of your child are met.

Creating a trust seems complicated. Can’t I just rely on an account for my child, such as an UTMA account?

State law provides default ways for someone to take custody of a minor’s assets (commonly referred to as the Uniform Transfers to Minors Act, or similar law). However, those default ways may not be as robust as the Trust for Descendant in allowing the custodian to fully manage those assets. Moreover, the custodial accounts may terminate automatically when the minor reaches the age of majority (usually, 18 or 21) whereas most people would prefer that the beneficiary be old enough to have acquired a formal education (e.g., 25).

Can I change my mind and add or remove this Trust for Descendant at a later date?

If you decide to create a trust for your child, that trust will be drafted into your documents. That being said, as long as you have a child or grandchild, it is possible for you to have a descendant who is a minor at the time you pass away (the circle of life and all that!). You should always try to plan using the most accurate information you have, both currently and in the future. Use your best judgment when answering this question. If your family situation changes in the future, come back to update your estate plan to match your current needs.

Why is Louisiana Trust law complex?

When should the trust end?

There are widely applicable benefits to keeping your assets in a Trust for your descendant’s lifetime, including protecting assets in the event of a divorce or from the beneficiary’s creditors, as well as flexibility to do death tax planning. When the Trust ends, so do those benefits. In contrast, you may simply want to remove all strings on an inheritance when your beneficiary reaches a specific age, even at the expense of those benefits.

It is especially important to have a lifetime Trust for Descendant in the following circumstances:

- You are concerned about your beneficiary's ability to handle their finances regardless of how old they are (e.g., for a beneficiary with special needs).

- You are concerned your beneficiary could get divorced or could owe money to others, so you would like to keep your beneficiary's inheritance in an asset protection trust.

- You own assets that you prefer to stay within the family, like a family business or real estate.

If you have questions about what’s best for your situation, consider consulting with a qualified attorney.

What happens when the trust ends?

When the Trust ends, the trustee will distribute the remaining assets in accordance with the terms of the trust agreement.

If the Trust ended because the primary beneficiary attained the milestone birthday you chose, any assets remaining in the trust will be transferred to the primary beneficiary. At that point, the assets can be gifted away, sold, or used without the oversight of a trustee, will no longer be protected from creditors (or upon divorce), and will enter the taxable estate of the beneficiary.

If the Trust ended because the primary beneficiary passed away, any property in the trust representing the “legitime” or forced portion of your estate, that amount could be distributed to the primary beneficiary’s legatees. Otherwise, the trust assets will be distributed to the primary beneficiary’s own descendants, otherwise your other descendants, following a default hierarchy that prioritizes closer descendants. These distributions will be made directly to these individuals and not held in further trust.

What happens if my descendant needs a distribution from the Trust before the Trust’s end date?

The trustee will have authority to make interim distributions to your beneficiaries to assist with that beneficiary’s health, education, maintenance, or support, or for any reason if the distribution is made by an independent trustee. These distributions will be made at the trustee’s discretion.

If you choose a Trust for Descendant that terminates upon reaching a milestone birthday, you will also have the opportunity to give the primary beneficiary a one-time withdrawal right over a portion of the trust.

Can I set up a dynasty trust for my child and more remote descendants?

Our Louisiana Will is not set up to give the user the ability to keep assets in trust longer than the lifetime of the child. This is an intentional choice given the inflexibility of Louisiana trust law. If you are interested in exploring trust structures that allow you to keep assets in trust for a long period of time, we suggest you consult with a Louisiana attorney.

Why should the Trust for Descendant end based on the age of the beneficiary?

Age of beneficiary is the most commonly used proxy for maturity and attaining some financial know-how. For this reason, the most commonly selected ages for terminating a Trust for Descendant are 25, 30 and 35.

Will my descendant have access to the trust assets before attaining the age of termination?

You also have the opportunity on this panel to give the primary beneficiary a one-time withdrawal right over a portion of the trust.

Does the trust continue in any way once my descendant reaches the age of termination?

The trust will not continue. When your beneficiary reaches the age of termination, the trust will end and the trustee will distribute the remaining assets to the primary beneficiary. At that point, the assets can be gifted away, sold, or used without the oversight of a trustee, will no longer be protected from creditors (or upon divorce), and will enter the taxable estate of the beneficiary.

Can I add interim distributions based on my descendant reaching age milestones or major life events, such as marriage or college graduation?

Requiring the trustee to make distributions at certain intervals is a less modern approach to ensuring children have what they need as they grow up. To effect a distribution of principal, the trustee must undergo a time-consuming and costly process called “trust accounting” to determine how much of the assets are distributable and what assets make up the distribution. It can create administrative and accounting headaches, particularly if the distributions weren’t made exactly on the date of distribution. Often, these distributions were not needed or even wanted by the beneficiaries.

Instead, our documents incorporate a “withdrawal right.” You can pick an interim age and fraction of the trust, and your beneficiary can demand that distribution from the trustee upon reaching that age. No distribution is required if it is not desired, and the trustee and beneficiary can work together to decide what makes the most sense for the beneficiary, without the headaches involved if no distribution occurs.

Can I put restrictions on distributions if certain conditions are not met, such as overcoming addiction?

While it might seem tempting to tie your trustee’s hands for issues your children are struggling with today, the truth is, the picture could be quite different by the time those children reach adulthood. Accordingly, instead of incorporating specific restrictions, our documents give the trustee discretion to determine what is in the best interest of the beneficiary and the authority to make distributions accordingly. If you desire specific restrictions in your estate plan that you do not see addressed in this workflow, consider consulting with a qualified attorney on the pros and cons of doing so.

What is a “withdrawal right?”

Our documents incorporate a more modern planning tool called a “withdrawal right.” You can pick an interim age and fraction of the trust, and your beneficiary can demand that distribution from the trustee upon reaching that age. No distribution is required if it is not desired, and the trustee and beneficiary can work together to decide what makes the most sense for the beneficiary, without the headaches involved if no distribution occurs.

Who decides when and if distributions are made?

You do, by selecting the age of termination and the age of withdrawal right. That said, once the trust is in effect, the trustee will have the discretion to determine if and when additional distributions are appropriate.

Can I select different ages of termination for different descendants?

No. This age of termination applies to all your Trusts for Descendant. If you have questions about further customizing any of your trusts, consider consulting with a qualified attorney to determine what is most appropriate for your situation.

How is this different from choosing the age when the trust ends?

The age of control is different from the age of termination. For one, the age of termination means the primary beneficiary attains complete control over the trust assets (because the trust ends and any remaining trust assets are distributed outright to the primary beneficiary). Thus, if you choose to include both ages, the age of control must come earlier than the age of termination.

The age of control is also relevant even if you are creating a lifetime Trust for Descendant. If your primary objective in creating a lifetime Trust is for tax reasons or asset protection, the age of control will allow your beneficiary to have the broadest powers over their own Trust without causing the trust assets to be includable in the beneficiary’s own taxable estate and slow down the ability of creditors to access the trust assets.

If your primary objectives are because you worry about the beneficiary’s long-term ability to manage their financial affairs, then consider selecting “Never Give Control.”

Why would I want to let my child control their trust?

Primarily for convenience and a successful long-term administration of the trust. You might believe that your descendant should be able to exercise control over their Trust, or at least have a say in who they work with upon attaining a certain age. Giving your descendant these powers can be helpful if there is ever a bad relationship between that descendant and their trustee.

What happens if I choose “Never Give Control?”

If you select “Never Give Control,” your descendant will never be able to act as trustee of their own trust or easily remove a trustee. While this would limit flexibility, it might be a good choice if you have serious concerns over your descendant’s ability to make sound decisions about the most important aspects of managing their trust.

How are heirs at law relevant to my trust?

Your heirs at law are the individuals who would inherit your estate if you were to pass away without an estate plan. If any assets from your trust remain undistributed after giving effect to all the provisions of your will and trust, those assets will still be distributed to your heirs at law.

Why might ultimate beneficiaries not receive anything?

There are several reasons an “Ultimate Beneficiary” named on this page may not receive a portion of your estate. First, an ultimate beneficiary (otherwise known as a contingent beneficiary) only inherits if another named beneficiary is unable or unwilling to accept the gift. For example, if the primary beneficiary dies before the testator or disclaims the gift. Second, and specific to Louisiana, the concept of vested principal beneficiaries can affect whether a contingent beneficiary actually receives property upon termination of a trust. If your will includes a Marital Trust or a Trust for Descendants your spouse or descendants could be considered vested principal beneficiaries of the trust who have a fixed and absolute right to the trust property. You can name an ultimate beneficiary to take the remaining trust property upon the principal beneficiary’s death, but the ultimate beneficiary would only receive the trust principal if the principal beneficiary died without heirs or a will.

If you have specific questions about the concept of vested interests in trust, we suggest that you consult with a Louisiana attorney.

What happens to my assets if I don’t specifically designate a beneficiary to receive them?

Many people do not leave any specific gifts as part of their estate plan because they prefer for all their assets to be part of the “residual estate” and pass to the beneficiaries of the residual estate. You have already selected how you want your residual estate to be distributed earlier in this workflow, and any specific gifts you make will be taken out of your estate and will not be part of that residual estate.

For example, if you own your home and want your home to pass to your spouse, and you have already indicated earlier that your spouse will be the first beneficiary to receive your residual estate upon your death, then you do not also need to leave a specific gift of your home to your spouse in this part of the workflow.

On the other hand, if you want to make sure a person receives a specific asset, even if that person is also going to receive a share of the residual estate, you should list that specific gift in this part of the workflow. For example, if your daughter is a beneficiary of your residual estate, but you want to ensure your daughter will receive your engagement ring, then you should mark the ring as a specific gift for her.

When are specific gifts taken out of my estate?

Specific Gifts are taken out of your estate upon your death before distribution of your residuary estate. If you are married, this means that specific gifts are distributed regardless of whether or not your spouse survives you. If you are not able to leave your assets to your intended beneficiaries as you wish by using this form, you should consult with an attorney.

What happens if there are just enough assets left in my estate to satisfy all specific gifts?

Generally, this is the order in which assets are paid or distributed from your estate:

Taxes
Expenses and debts
Specific gifts
Residual estate

Thus, if there are just enough assets left in your estate to satisfy the specific gifts, there may be nothing left to distribute to the beneficiaries of your residual estate (i.e., the beneficiaries you selected earlier in this workflow).

Such a result may complicate the probate process and be a source of conflict among your beneficiaries. Please review your specific gifts carefully and update your will periodically to account for any changes in the assets you own.

What happens if there aren’t enough assets left in my estate to satisfy all specific gifts?

If there are not enough assets left in your estate to satisfy the specific gifts, your will provides some default rules. First, your gift of pets to a pet caretaker will still be made as you directed. Your gifts of personal objects (such as a ring) will still be made if you owned those objects at your death (and the executor can find them).

All other gifts (e.g., cash) will be reduced on a pro rata basis so that a portion of each gift is still made. You may prefer to specify a priority order among your specific gifts in the event your estate does not have enough assets to satisfy all of them; however, we do not currently offer this feature.

Note that if there are not enough assets left to satisfy specific gifts, there will be nothing left to distribute to the beneficiaries of your residual estate either (i.e., the beneficiaries you selected earlier in this workflow).

We highly recommend avoiding such a result because this may complicate the probate process and be a source of conflict among your beneficiaries. Please review your specific gifts carefully and update your will periodically to account for any changes in the assets you own.

Instructions for Adding Descriptions for Gifts

These specific gifts will appear in your estate plan documents. If you would like to make a gift of a specific personal object (e.g., jewelry), keep in mind that your executor must be able to pinpoint the exact object you have in mind. When describing this object, if the Asset Name is not sufficient on its own to identify the object so it is unique (e.g., “brooch”), consider providing more details in the box for “Description for Estate Plan” such as a physical description, a brand, the make/model or a serial number (e.g., “brooch in the shape of a peacock that I purchased in Paris”).

The information you include in the boxes “Asset Name” and “Description for Estate Plan” will both be reflected in your estate planning documents so should be used for formal descriptions only. Review the draft carefully to ensure that any object that you would like to gift is described precisely and accurately.

What happens to my personal objects if I don’t make specific gifts of them?

It is a common task for executors to dispose of personal objects. Your executor should first find, collect and secure the objects. Your will directs your executor to distribute your personal objects to the beneficiaries of your residual estate. If you have multiple beneficiaries, they will decide among themselves who gets what objects. If objects remain unclaimed, your executor should sell them or donate them, depending on their value, and your will directs that any sale proceeds will become part of the residual estate. Thus, many people do not make specific gifts of their personal objects, but leave their executor and beneficiaries to decide.

I want to make a specific gift of a personal object. What should I be aware of?

First, consider how to describe the object so that the object is easily identifiable and unique. The text you provide in the field “Description for Estate Planning” for the asset card will be replicated as-is into your estate planning documents, so be clear and precise. For example, you might want to include a physical description, the brand, the make/model and/or a serial number, as appropriate.

Second, gifts of personal objects are valid only if (1) you own the object at your death (there is no make-up gift) and (2) your intended beneficiary survives you. If you own the object at your death, but the beneficiary predeceases you, then the object will be disposed of like your other personal objects. See the question “What happens to my personal objects if I don’t make specific gifts of them?“ [Engineering: Please insert the appropriate link here.]

Not all states allow for the Tangible Personal Property List to be incorporated into a will. If you live in such a state, then your gifts will all appear in the will itself.

I want to make a specific gift of real estate. What should I be aware of?

Real estate can be a significant part of someone’s estate, by value, so it can be especially tricky to designate real estate as a specific gift. Therefore, it is possible to make an easy foot fault and potentially leave very little in the residual estate for your intended beneficiaries if you leave real estate as a specific gift. We recommend you consult with an attorney if you wish to do this. Here are some considerations:

Consider that this real estate (if you own it at death) will be part of your residual estate if you do not make a specific gift of it. If you are okay with the real estate being passed to the beneficiaries of your residual estate, then consider not listing it as a specific gift, too.
Consider whether the real estate is likely to be such a significant part of your estate, by value, that your executor will need to sell it anyway in order to satisfy any other gifts in your will.
Consider whether your beneficiary who receives the real estate will be able to maintain the real estate in the long term, if that is your intent. Common expenses include mortgage payments, property taxes, and repair and improvement costs.

Why can I only make specific gifts of personal objects, cash or real estate?

To help guide our members, we have only enabled the ability to gift these types of assets, though additional features may be released at a later date. For example, this workflow does not allow you to leave specific gifts of bank or brokerage accounts because it is highly likely that the values in those accounts will change over your lifetime, and you may close and open new accounts. It is a source of potential confusion and conflict with what your intent was in designating that account as a specific gift. If you want to make a specific gift of an account, consider designating a “pay on death” (POD) beneficiary using the institution’s forms. However, there may be pitfalls to this approach as well. By designating a POD beneficiary, the account will pass to the beneficiary outside of your estate, so the assets will not be available to pay your expenses, debts and taxes, which may put your executor and beneficiaries in a tough position if there are not enough assets left in your estate to pay for those expenses, debts and taxes.

What happens if at my death I no longer own the personal object that I wanted to gift?

If you no longer own the object at your death (for example, you lost it or gave it away), the gift will lapse and there will be no make-up gift (for example, in cash for the value of the object).

What happens if at my death I do not own enough cash to satisfy a specific gift?

If at your death, your executor does not have enough cash on hand to satisfy the gift, your executor will consider whether other assets in your estate can be sold to generate cash to satisfy this gift.

What happens if at my death I no longer own the real estate property that I wanted to gift?

If you no longer own the real estate at your death (for example, you sold it), the gift will lapse and there will be no make-up gift (for example, in cash for the value of the real estate). If you purchased a replacement property, you should update your will to reflect the new address of the property.

What does an executor do?

Being an executor is an honor, but even with a smooth estate administration process, it is an honor that comes with a lot of paperwork! The executor has a legal duty to follow the instructions left in the will, to secure your assets upon your death (e.g., to find and lock up any valuables), to pay your expenses (e.g., funeral expenses) and debts, and to file your last tax returns, and to transfer your assets to your beneficiaries, among many other tasks.

What should I look for in naming an executor?

This is a big job. Ideally, your executor would have a strong sense of responsibility, be a good communicator and responsive, and be good at managing financial affairs. Because it can be a demanding role, it is important to pick at least one backup executor.

People often choose the same set of people to act as executor, trustee (if your will creates any trusts), and agent on a power of attorney over financial matters.

Note that the executor must be able to communicate with many types of people, including the probate court, your banks, your employer and your beneficiaries. This role typically lasts six months to two years, but this varies by state and by county.

What to look for:

At least 18 years old
Trustworthy (executors are entitled to compensation from your estate by law)
Strong sense of responsibility (for example, this person is willing to follow the instructions in your will, even if the person does not personally agree with them)
Diligence and responsiveness
Computer literacy
Gets along with your beneficiaries
Has some know-how about personal finances (for example, has a good credit history)
Lives close to your home or is willing to travel to your home regularly

Concerns to consider:

Unresponsiveness in daily communications with you currently
Existing conflict with one or more of your beneficiaries
Gets overwhelmed by paperwork or financial matters
Lives abroad or in a much different time zone from you

Does it matter if my executor and I do not live in the same state?

As long as that person is willing to travel to your home a couple of times while your estate is being settled, you should still name that person as executor.

Some states require that any probate proceedings within the state must be handled by an executor who lives within the state (a “resident executor”). If this situation applies to you, we recommend that you name the person who is your first choice as executor in your will, regardless of state residency. That person can then handle who to appoint as the resident executor, as one of many decisions that person will be making, such as hiring a CPA to prepare your last tax returns or an attorney to navigate the probate process.

Does it matter if my executor resides in the United States?

This decision depends on several factors, such as whether the person living abroad speaks English, lives in the same time zone as the probate court and your other advisors, such as bankers and CPAs, and is familiar with the concept of probate. Because the probate process can be quite complicated, you may want to name a person who lives in the United States or who is a U.S. citizen because that person is more likely to be familiar with the concept of probate. If your executor lives abroad and is not familiar with how you manage your financial affairs in the U.S. (for example, what bank may have your safety deposit box and what local gym you are a member of), you should consider leaving particularly detailed instructions on how to find and access your assets, which you can save in the Wealth Vault.

What if no one close to me is a good fit for the role of executor?

You should consider finding a professional fiduciary or advisor to manage your estate. Professional fiduciaries are individuals who may be licensed as fiduciaries within your state, or organizations, such as banks or trust companies. There are benefits and concerns with each type of fiduciary. When weighing your options, in addition to the considerations broadly applicable to choosing an executor, you should consider the professional fiduciary’s experience and reputation, typical cost for managing an estate and method for charging fees (for example, fixed fee, billing by the hour or a percentage of assets under management), existence of a succession plan in case the professional fiduciary is unable to serve, and ability to be nimble and responsive to you and your beneficiaries.

What happens if I change my mind about who should be my executor?

People commonly change their minds about who should act as executor – children grow up, siblings or parents age, and closest relationships may change. Changing the order of succession for your executors is one of the most common and important reasons for updating a will, and we recommend that you review your will periodically.

Looking to assign joint executors?

We recommend naming only one person to act as executor at a time, even if that person may require assistance or solicit opinions from other family members when managing your estate. Naming more than one person to act as executor entails gathering multiple signatures, which can increase administrative hurdles in managing your estate. However, we know that for some situations, naming co-executors is the best option (for example, to provide checks and balances in this important role). The ability to name co-executors will be released at a later date.

What does a trustee do?

Being a trustee, like being an executor, is an honor. But even with a smooth estate and trust administration process, this honor comes with a lot of paperwork! The trustee is a fiduciary; the trustee has a legal duty to hold the legal title to the trust’s assets for the benefit of all of the trust’s beneficiaries. Practically, the trustee must follow the instructions in your trust, to administer the trust for the benefit of its beneficiaries, to pay taxes, among many other tasks.

What should I look for in naming a trustee?

This is a big job. Ideally, the trustee who follows you will have a strong sense of responsibility, be a good communicator and responsive, and be good at managing financial affairs. Because it can be a demanding role, it is important to pick at least one backup to that person.

People often choose the same set of people to act as trustee, executor and agent in a power of attorney over financial matters.

Note that the trustee must be able to communicate with many types of people, including the probate court, your banks, your employer and your beneficiaries. This role could last just a few months or decades, depending on the types of subtrusts included in your estate plan.

What to look for:

At least 18 years of age
Trustworthy (trustees are entitled to compensation from your assets by law)
Strong sense of responsibility (for example, this person is willing to follow the instructions in your trust, even if the person does not personally agree with them)
Diligence and responsiveness
Computer literacy
Gets along with your beneficiaries
Has some know-how about personal finances (for example, has a good credit history)
Lives close to your home or is willing to travel to your home regularly

Concerns to consider:

Unresponsiveness in daily communications with you currently
Existing conflict with one or more of your beneficiaries
Gets overwhelmed by paperwork or financial matters
Lives abroad or in a much different time zone from you

Can my beneficiary be the trustee?

If a beneficiary becomes a trustee, there may be certain powers that this “interested trustee” cannot exercise without causing adverse tax issues, so the trust agreement restricts your interested trustee (or anyone who is considered under the tax rules to be too closely related or subordinate to this interested trustee) from using certain powers. In that case, your trust allows an “independent trustee” to be appointed, who can then exercise those tricky powers.

What is the practical difference between the roles of trustee and executor?

Although the two roles are similar and call for the same set of skills, the most meaningful difference is that the role of trustee may last longer than the role of executor if you expect your assets to be held in an irrevocable trust after your death.

Should my trustee reside in the United States?

This decision depends on several factors, such as whether the person living abroad speaks English, lives in the same time zone as your executor and your other advisors, such as bankers and CPAs, and is familiar with the concept of a trust and probate. Because the administration of an estate and a trust can be quite complicated, you may want to name a person who lives in the United States or who is a U.S. citizen because that person is more likely to be familiar with the legal system. If the person you pick as successor trustee lives abroad and is not familiar with how you manage your financial affairs in the U.S. (e.g., what bank may have your safety deposit box and what local gym you are a member of), you should consider leaving particularly detailed instructions on how to find and access your assets, which you can save in the Wealth Vault.

What if no one close to me is a good fit for the role of trustee?

You should consider finding a professional fiduciary to manage your estate and serve as trustee. Professional fiduciaries are individuals who may be licensed as fiduciaries within your state, or organizations, such as banks or trust companies. There are benefits and concerns with each type of fiduciary. When weighing your options, in addition to the considerations broadly applicable to choosing a trustee, you should consider the professional fiduciary’s experience and reputation, typical cost for managing an estate and method for charging fees (for example, fixed fee, billing by the hour or a percentage of assets under management), existence of a succession plan in case the professional fiduciary is unable to serve, and ability to be nimble and responsive to you and your beneficiaries.

What happens if I change my mind about who should be my trustee?

People commonly change their minds about who should act in trusted roles – children grow up, siblings or parents age, and close relationships may change. Changing the order of succession for your trustees is one of the most common and important reasons for updating a trust, and you should review your trust periodically.

Your trust will allow you to make these changes by signing a simple written document that you will attach to your trust. You will have this power in your capacity as the initial trustee appointer. To learn more, read the question “What does a trustee appointer do?”

Looking to assign co-trustees?

You may know several people who are well-suited to the role of successor trustee for your trust. Nonetheless, consider naming only one person to act as trustee at a time, even if that person may require assistance or solicit opinions from other family members when managing your trust. Naming more than one person to act as trustee entails gathering multiple signatures, which can increase administrative hurdles in managing your affairs. That said, there are some situations where naming co-trustees is the best option (for example, to provide checks and balances in this important role). If you would like to name co-trustees to act together as a "team", you can do so by selecting "I want my successor trustees to act together as co-trustees."

What does a trustee appointer do?

The trustee appointer controls who serves as trustee. The trustee appointer can remove any trustee who is currently serving and a successor trustee who has not yet started serving. The trustee appointer can name new trustees (or name a co-trustee) and can change the order of succession for the trustees.

This is a fiduciary role (like a trustee or executor). The trustee appointer must act in the best interest of all the beneficiaries of the trust (and not just in his or her own best interests).

It is important to try to have someone in this role at all times.

What should I look for in naming a trustee appointer?

This is an important role because this person controls your trustee. You should consider whether there ought to be checks and balances between your beneficiaries and trustees, or whether someone you trust who was not a good fit for trustee would be a better fit for trustee appointer.

For example, if you trust the people you picked as trustees completely, you can name them as trustee appointers so they have the ability to replace themselves. This is quite common.

An alternate scenario may be that you have a spouse who is the most important person you want to protect, but is not comfortable with the role of trustee because of language issues or lack of familiarity with financial and legal matters. Still, you want your spouse to have a say in who is trustee. In this case, you should consider naming your spouse as the trustee appointer and someone else as the trustee.

What to look for:

At least 18 years of age
Trustworthy

Concerns to consider:

Existing conflict with one or more of your beneficiaries
May not act in the interest of all beneficiaries

Can I name my trustees as the trustee appointers also?

Yes, your trustee can also be the trustee appointer. In fact, if you feel comfortable that your trustee will not need much oversight from anyone else, it is appropriate to allow your trustee to appoint their own replacement in the event your trustee is no longer able or willing to serve.

What if everyone I named as trustee appointer can no longer act?

Normally, if the document creating thet trust is silent on this issue and a trust no longer has a trustee (or the current trustee should be removed and replaced), and no one has the power to name a new trustee, the beneficiaries must seek help through the court. Because this process can take a while – and be a burden on the beneficiaries who may need a distribution from the trust sooner – the Wealth.com trust contains a default hierarchy of those who can step in and name a new trustee. This default hierarchy takes effect only once those you have named are no longer able to serve, and it prioritizes giving the power to beneficiaries over those who are serving, or have served, as trustees.

What are specific circumstances when a trustee appointer has to act?

During the life of a trust, even if every beneficiary is happy with the trustee, there may be certain circumstances when the trustee appointer should step in and act. Here are some examples:

Your trustee could become incapacitated or pass away
Your beneficiaries may become more financially knowledgeable and would like to become co-trustees to share in the management of the trust
The trustee may be a beneficiary or too closely related to a beneficiary, and is discouraged by tax rules from exercising certain trust powers. In that case, the trustee appointer may need to appoint an independent trustee to exercise those tricky powers

Looking to assign co-trustee appointers?

We know that for many families, naming co-trustee appointers is the best option so that every beneficiary has an equal voice or to provide checks and balances over this important role. The ability to name co-trustee appointers will be released at a later date.

Are you concerned about your spouse being a trustee of a Trust that you create specifically for their benefit?

Should I let my spouse act as trustee of their own trust?

This can depend on your reasons for creating the Marital Trust. If your sole reason is for tax planning, you may wish to allow your spouse to serve as trustee. This provides your spouse greater control and flexibility to manage the trust assets, all while preserving the tax benefits you intend. If your reasons for creating the Marital Trust include wanting to maintain control over the assets, how they are used, and where they are to go upon your spouse’s death, then you may wish to disallow your spouse from serving as trustee of the Marital Trust (and Family Trust if one is formed to utilize your tax exemption amount).

Note that your spouse will continue to be able to remove and replace the trustee. This is helpful in the event your trustees are unable to serve or do not get along with your spouse.

Why would I want to let my spouse act as trustee of their trust?

Primarily for convenience. If you want your spouse to enjoy their inheritance from you as freely as possible, while preserving the ability to do some tax planning at your death, you should allow your spouse to serve as their own trustee.

What happens if I choose “Yes?”

If you select “Yes,” your spouse will never be able to act as trustee of their own trust. While this would limit flexibility, it might be a good choice if you have any concern over your spouse’s ability to manage their finances or you want to leave full discretion over the use of the assets in the Marital Trust (and Family Trust if one is formed to utilize your tax exemption amount) to the trustees you choose.

Keep in mind that if you do not want your spouse to be able to remove or replace a trustee, you should select someone else to serve as a trustee appointer later in this workflow. If the individual(s) you name as trustee appointers are unable or unwilling to act, or if you would like your spouse to be able to remove a trustee and appoint a new trustee, your spouse would have the authority to appoint anyone but themselves to serve as trustee. If you have any questions or concerns about the control your spouse would have over the trust as a potential trustee appointer, please consult an attorney.

I have heard of appointments of a tutor or tutrix in Louisiana, is that the same as a guardian?

Yes, a guardian is referred to as a tutor under Louisiana law. The terms can be used interchangeably and we use both terms in our Louisiana documents.

Should I name my child(ren)’s other parent as guardian?

No, you should not name your child(ren)’s other parent as the guardian. A guardian is only appointed once no parent is able to care for the child(ren).

What should I look for in naming a guardian?

This might feel like a difficult decision because no one can perfectly step into your shoes to raise your children, yet it is one of your most important decisions when putting together an estate plan. If you and the other parent both named guardians separately, ensure that you chose the same people, without contradictions.

What to look for:

At least 18 years old, as the signature of an adult is often necessary, even if you would have liked to name a sibling who is mature but still a minor
Similar values to yours (for example, outlook on education, professional and financial responsibility, religious and moral beliefs)
Experience as a parent or long-term caring for children
Can keep up with your child as they grow older
Gets along with other family members who want to stay connected with your child(ren)
Lives in the same geographic area as you

Concerns to consider:

May not responsibly use the funds meant for your children
Has too much going on with his / her / their own family or professional obligations
Lives in a completely different environment or culture

Why does it matter if my guardian resides in the United States?

If all the potential guardians live abroad while the child lives in the U.S., the guardianship proceeding in the U.S. may take longer. During this time, you should name a temporary guardian in the state where you and your child(ren) live to take custody until the permanent guardian is appointed. If this applies, you will be prompted on the following page to name an optional temporary guardian.

Looking to assign joint guardians?

At this time, you can only indicate that you want one person to act as guardian at a time. You are able to name a single primary guardian with additional backup guardians, as well as a temporary guardian if none of the primary or backup guardians are based in the U.S. The ability to name co-guardians will be released at a later date. If you would like spouses to serve jointly, add each person one after the other.

What is a temporary guardian?

A temporary guardian is the person who takes custody of your child(ren) until the permanent guardian is appointed by the court. This is only relevant if none of the guardians you have chosen reside within the U.S. If all the potential guardians live abroad while the child lives in the U.S., the guardianship proceeding in the U.S. may take longer, so we recommend naming at least one temporary guardian to care for your child(ren) during this time.

Why should I address the court or my family?

Ultimately, a judge must sign off on who is appointed as guardian. If you worry that anyone in your family may disagree with your choice of guardian and bring it up to the judge, it may be helpful to explain to them what considerations were important to you when choosing the guardian. The hope is to minimize conflicts and shorten the guardianship proceeding.

What happens to my pets if all the people I chose as caretakers are no longer willing or able to take my pets?

Usually, the executor will figure out if anyone among friends and family will take the pets. Your will instructs the executor to prioritize finding an individual first. If a person cannot be found, then it is likely the pet will be surrendered to an animal shelter or other organization.

Why can’t I leave money directly to my pets?

Because pets are usually considered “property” themselves under the law, the pets themselves cannot receive assets. To set aside assets for your pets’ wellbeing, we recommend that you make a one-time specific gift to the individual who will care for your pets.

What are potential pitfalls of leaving a one-time gift?

Unfortunately, no one can guarantee that the caretaker will use the gift to take care of your pets. Your executor, as part of managing your estate, will distribute the one-time cash gift to the person whom the executor believes will take care of all your pets, but the executor has no continued responsibility to monitor the use of that money. Note that the executor’s role terminates when your estate has been wrapped up. Unlike a trust, which is expected to continue for some time, an estate should come to an end sooner rather than later.

It may also be difficult for your executor to know exactly who qualifies to take this one-time gift. To see how your will addresses this difficulty, see the question “Under what circumstances will the one-time gift be distributed?”

To minimize conflict, you should leave no more money than an amount that is reasonable for keeping your pets healthy and well-cared for, based on the life expectancy of your pets, rather than an amount that is much larger than the reasonable, expected costs.

Note that, as with all specific gifts, this sum will be taken out of your estate first, before your residual estate is distributed to your other beneficiaries. Thus, it is possible that if this one-time gift to care for your pets is a significant sum of what is left in your estate (after payment of funeral expenses, your last income tax, etc.), there may not be much, if anything, left in your estate for your other beneficiaries, such as your spouse or children. To learn more about specific gifts, see the question “What happens if there are just enough assets left in my estate to satisfy all specific gifts?”

Under what circumstances will the one-time gift be distributed?

The one-time cash gift could be a potential administrative headache for your executor or a source of potential conflict that could delay the probate process. See the question “What are potential pitfalls of leaving a one-time gift?”

For this reason, the will requires that, before receiving the cash gift, the individual must have already taken physical possession of your pets (to avoid distributing the cash for a mere promise rather than a demonstrated commitment to care for your pets) and must take all the pets if you have more than one pet at the time you pass away (to minimize conflict on how to split the one-time gift). If no one qualifies for the one-time gift, the executor will be instructed not to make the gift, and the executor will have flexibility to decide if all the qualifications have been satisfied. The executor will not make this one-time gift if an organization, such an animal shelter, receives your pets from your estate.

Is it a good idea to create a pet trust?

A pet trust is a type of irrevocable trust created for the purpose of taking care of pets. You would choose a trustee who ideally would be different from the person taking care of your pets (since your pets cannot provide for checks and balances on the use of trust assets). As with all irrevocable trusts, the costs of administering the trust (such as setting up bank accounts or filing income taxes) can outweigh the benefits of the trust. Unless you want to set aside a significant sum for the wellbeing of your pets, a pet trust may not make sense.

The law also disfavors these kinds of trusts (for example, you may not be able to leave assets for the descendants of your pets). For these reasons, we do not recommend creating a pet trust. If you are interested in creating a pet trust, you should consult with an attorney.

Louisiana is the only state in the United States that has the concept of forced heirship in its estate and succession laws. Forced heirship requires that certain heirs receive a portion of a deceased person's estate, regardless of the decedent’s wishes. The concept stems from Louisiana's civil law system, which is influenced by French and Spanish legal traditions. It exists to protect a decedent’s children, particularly minors and sometimes adult children who are disabled, ensuring they receive a portion of their parent's estate.

Forced heirship requires that certain qualifying family members (generally children under the age of 24 at the time of a decedent’s death and children with qualifying special needs) receive a portion of their deceased parent’s estate, regardless of what the decedent has stated in a will or other estate planning documents. The basic rule is that the forced portion of an estate depends on the number of forced heirs and the total value of the estate. If there is one forced heir, they are entitled to one-quarter of the estate; if there are two or more forced heirs, they are entitled to one-half of the estate.

The forced portion that is set aside for forced heirs is referred to as the “forced portion” or “legitime.”

Who is considered a “forced heir”?

Note that forced heirship laws do not include stepchildren unless they have been formally adopted.

What kinds of special needs might make my child qualify as a forced heir?

A child or descendant might qualify as a “forced” heir because of certain disabilities that could make themselves unable to support themselves at the time of your death. These conditions are not specifically defined under Louisiana law, but include those conditions that make child or descendant permanently incapable of taking care of their person or administering their estate at the time of the decedent’s death because of a physical or mental infirmity, or an inherited, incurable condition, that may render them incapable of taking care of their person or estate in the future.

“What property is included in the ‘forced portion’”?

“Can I disinherit my child?”

“I have a child with special needs. What should I be aware of?”

A child with special needs might qualify as a “forced heir” under the concept of “forced heirship” under Louisiana law. This would entitle your child to a certain portion of your assets upon your death.

In addition to considering forced heirship, it may be appropriate to have a special form of trust for your child or other beneficiary with special needs known as a “special needs trust.” A special needs trust is designed to protect assets for a special needs beneficiary while preserving the beneficiary’s eligibility for needs-based government benefits like Medicaid and Supplement Security Income.

If forced heirship could potentially apply to me, what does that mean for my estate plan?

If your selections indicate that forced heirship could apply to the distribution of your estate, your last will and testament will include provisions to distribute the “forced portion” of your estate to your heirs who qualify as forced heirs. We will also ask you additional questions in the Last Will and Testament workflow about whether you want to include certain provisions in your will so that your spouse can have use of this property set aside for your children who are forced heirs or if you would like to make equivalent gifts to your other children who are not considered forced heirs at the time of your death.

“If forced heirship applies to my estate at my death, can my spouse have access to use the “forced portion” of my property set aside for my forced heirs?”

Yes, you can grant your spouse a usufruct over the forced portion of your estate reserved by law for your forced heirs. A usufruct (similar to a life estate) allows your spouse to use and benefit from that property (like living in the house or earning income from investments) until their death.

What is a usufruct?

How could forced heirship impact my estate plan?

To illustrate how forced heirship can impact a person’s estate plan, let’s imagine a Louisiana couple, John and Jane Doe. John and Jane would like to leave a majority of their assets to each other and then have the balance of their property go to their two children after both of their deaths.

Figure 1

However, let’s assume that one of Jane and John’s children, Jack, is under the age of 24 at the time of John’s death. In that case, Jack would be considered a forced heir under Louisiana law, which would restrict John from giving 100% of his estate to Jane as he might have hoped. In this example, Jack would be entitled to 25% of John’s estate, otherwise known as the “forced portion” or “legitime.” John would be able to give the remaining 75% of his estate as he chooses.

Figure 2

While John cannot change the amount going to Jack under the rules of forced heirship, there are estate planning strategies for John to consider when forced heirship applies. First, if John’s goal is to give Jane access to 100% of his assets during Jane’s lifetime, he can accomplish this by granting Jane a “usufruct” in the forced portion going to Jack.

A usufruct is the temporary right to use and derive benefits from property. It is similar to the concept of a life estate in common law states. The “usufructory,” or person granted the right to the usufruct has the legal right to use and benefit from the property (e.g., by living in it, farming it, or collecting rent or profits), but they must preserve the property and eventually return it to the bare owner when the usufruct ends.

[Show Figure 3 below]

Figure 3

In this example, Jane would have the right to access and benefit from the property set aside for Jack during her lifetime. For example, if real estate was set aside as part of the forced portion, Jane would have the right to live in the home or rent it out and retain the profits, but would also be responsible for preserving the property for the naked owner, Jack. At Jane’s death, the full ownership of the property would pass to Jack.

Figure 4

Another question raised with forced heirship is whether an equal amount should be set aside for other children who are not considered forced heirs at the time of the decedent’s death. As part of the Wealth.com Louisiana estate planning workflow, you will be asked if you would like to make equal gifts to all of your children at your death, even if not all of them are considered forced heirs under Louisiana law. In the Doe Family, this would mean that Jill would have an equal 25% share of John’s estate set aside for her even though she is 24 and no longer would be considered a forced heir. If John elected to grant a usufruct to Jane, Jane would have a usufruct over all of the property set aside for Jack and Jill.

Forced heirship in Louisiana can add unique complexities to your estate plan, especially when trying to balance legal requirements with your personal wishes. At Wealth.com, we’re here to help you navigate these challenges and assist you in creating an estate plan that complies with Louisiana law—while still reflecting your values and goals. If you have any questions throughout the process, please reach out to our support team and we will connect you with a Louisiana attorney to help answer your questions.