Two Forms of Louisiana Wills: Part 2 - The Notarial Testament
In the other post to this two-part series, we discussed the ins and outs of the olographic testament in Louisiana. In this post we address the more common type of testament: the notarial testament.
Mainly since the olographic testament has the requirement that it be written entirely in the hand of the testator, notarial testaments are more common. Notarial testaments are generally type written and computer generated, typically by an attorney.
There are strict formality requirements that must be met for a notarial testament to be deemed valid by a judge in the proper state court. All notarial testaments must be in writing and dated. And the following requirements must be met when the testator knows how to sign his name and to read and is physically able to do both:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and witness shall sign the following declaration, or one substantially similar: “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, and in the presence of the testator and each other we have hereunto subscribed our names this __ day of _________, ____.
Note that there are many court cases where judges have been forced to decide whether the formality requirements of a notarial testament have been met.
Note also that there are other notarial testament requirements for circumstances where: a testator is literate and sighted but physically unable to sign; the testator does not know how to read, or is physically impaired to the extent he cannot read; the testator knows how to and is physically able to read braille; or for a person who has been legally declared physically deaf or deaf and blind and who is able to read sign language, braille, or visual English.
Because notarial testaments are generally prepared by lawyers trained in the intricacies of estate planning, and can use their experiences to serve their clients, notarial testaments are generally more thorough than the customary olographic testament prepared often by a do-it-yourselfer.
Provisions in notarial testaments typically appoint executors, authorize the independent administration, waive bond requirements for executors, trustees and usufructuaries, leave assets in a testamentary trust for minors, irresponsible heirs, heirs receiving certain government benefits, and to keep property in the bloodlines for more than one generation.
In Louisiana, some notarial testaments bequeath usufruct to a surviving spouse and name naked owners who are entitled to ownership of assets at the termination of the usufruct. In addition, most notarial testaments address reasonable contingencies, such as what happens if one or more of the executors or heirs predecease the testator.
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