4.4 Wills and Succession Documents

The Notary's Unique Role in Successions

Louisiana notaries hold powers in estate matters that surprise candidates from common-law states: they prepare and pass notarial testaments, draft small-succession affidavits, prepare sworn detailed descriptive lists, and — when court-appointed — make inventories of estates. The exam expects precise knowledge of the testament formalities and the succession vocabulary.

Forms of Will

An olographic will must be entirely written, dated, and signed in the testator's own handwriting. No notary and no witnesses are involved; it is proved later in court by handwriting testimony. The notarial testament is the more secure, self-proving form.

Notarial Testament — The Standard Case (CC Article 1577)

This is the most-corrected point in the chapter. For a testator who knows how to and is able to read and sign, the notarial testament is NOT read aloud. Instead:

1. In the presence of a notary and two competent witnesses, the testator declares or signifies that the instrument is their testament.
2. The testator signs at the end of the testament and on each other separate page.
3. In the presence of the testator and each other, the notary and witnesses sign an attestation clause substantially in the statutory wording: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page..."

All three — testator, both witnesses, and notary — must remain together; if anyone leaves the room before the last signature, the testament is an absolute nullity.

Special Cases

So "read aloud" is the exception for non-readers — not the rule for everyone. A question that says the notary must always read the will aloud is wrong.

Small Succession by Affidavit (CCP Article 3421)

A small succession lets heirs transfer a decedent's property without a full court succession, using a sworn affidavit. Under Code of Civil Procedure (CCP) Article 3421, the affidavit procedure is available when the gross value of the decedent's Louisiana estate is $125,000 or less at the date of death — or when the decedent has been dead for 20 years or more, regardless of value.

For a married decedent, the $125,000 applies only to the decedent's interest, not the full value of community property.

Descriptive List and Court-Ordered Inventory

• A sworn detailed descriptive list is the routine substitute for a formal inventory; an heir or representative swears to the assets and their fair-market values.
• When the court orders a formal inventory (CCP Art. 3131 et seq.), a court-appointed notary makes it in the presence of two competent witnesses, valuing each item; appraisers may assist.
• A judgment of possession is the decree placing heirs in possession; it is recorded in the conveyance records of each parish where immovable property lies.

Louisiana Succession Vocabulary

Forced Heirship and the Legitime

Louisiana is the only state retaining forced heirship, and the exam expects awareness of it. Certain descendants are forced heirs — a child who is 23 years of age or younger at the testator's death, or a child of any age who is permanently incapable of caring for their person or estate due to mental incapacity or physical infirmity. A forced heir is entitled to a protected share called the legitime: one-fourth of the estate if there is one forced heir, and one-half if there are two or more. A testator cannot disinherit a forced heir except for narrow just causes listed in the Code.

A will that purports to leave nothing to a qualifying forced heir is reducible to the extent it impairs the legitime.

Usufruct, Naked Ownership, and the Surviving Spouse

Louisiana succession routinely splits ownership into a usufruct (the right to use property and take its fruits, akin to a life estate) and the naked ownership (the residual ownership that becomes full ownership when the usufruct ends). By operation of law, a surviving spouse often receives a usufruct over the deceased spouse's share of community property, with the children taking naked ownership. Understanding this division explains why a notary drafting succession documents must identify whether an heir takes full ownership, naked ownership, or a usufruct — the descriptive list and judgment of possession must say so precisely.

Common Traps

• Saying a notarial testament is "always read aloud" — false for literate testators; reading aloud is the rule only when the testator cannot read (CC Art. 1579).
• Forgetting the testator signs each page, not just the end.
• Misstating the small-succession ceiling — it is $125,000 gross, not $75,000 or $100,000.
• Treating a forced heir as someone who can be freely disinherited, or forgetting the 23-or-younger and permanent-incapacity definitions.
• Confusing usufruct (use of the property) with naked ownership (residual ownership).