Estate Frequently Asked Questions

WHAT DO THESE LEGAL TERMS MEAN IN LOUISIANA? These terms and their meanings vary from state to state.


          Everyone has one. The State of Louisiana has one prepared for you in the Louisiana Civil Code, or you may make your own in a Last Will & Testament or Trust.

          Your estate plan decides what your care will be and where you live upon disability and possible incompetency. Your plan decides which people receive your assets at your death. The plan decides which causes or charities you wish to support and how much. An estate plan may include some or all of the following documents: Business Power of Attorney, Medical Power of Attorney, Declaration often called a Living Will, Revocable or Irrevocable Trust, Last Will & Testament, and a Business Entity choice such as an L.L.C. These documents when combined correctly address disability and death. A Trust may also control assets after death, sometimes for several generations.

          If a person dies without a will, he is said to die INTESTATE. One who dies with a will, dies TESTATE.


          An AGENT/MANDATARY is the person appointed by the PRINCIPAL, who is the person making the Power of Attorney and deciding which powers to grant. The Agent acts for the principal in the principal’s Power of Attorney. The Agent or mandatary acts according to the terms set out in the Power of Attorney by the Principal. The agent may act immediately upon the signing of the Power of Attorney or only upon disability of the principal. This decision is made by the person making the Power of Attorney and is stated in the Power of Attorney. If the Power of Attorney is effective only upon disability the power is said to be “springing.” The Power of Attorney is durable because it withstands disability.

          There are a broad range of powers which may be included in a Power of Attorney. The Louisiana Civil Code states that some powers must be listed specifically or the agent is without power to do these specific types of things.

          If the Power of Attorney is not drafted properly and the person making the Power of Attorney becomes mentally incompetent, a new Power of Attorney may not be signed. Therefore, it is important to sign a proper Power of Attorney early.

          The principal may revoke the Power of Attorney as long as he or she remains competent to do so.

          The Power of Attorney, although it survives disability and continues to be effective, does not survive death of the principal. It terminates upon the principal’s death.


          ADMINISTRATOR: This is a person who asks the court to appoint them to administer a deceased’s person property and pay debts when there is no will naming a person to be in charge. If more than one person wants this position, the court will decide who receives this appointment after a hearing.

          EXECUTOR/EXECUTRIX: These are the male/female counterparts. This person is appointed by the deceased in his or her Last Will & Testament to be the person in charge of the estate. Like an administrator, the Executor or Executrix will gather, protect, and maintain assets, maintain insurance on assets and pay debts. Payment of debts will require court approval unless the Executor/Executrix is independent. If the Will provides for an Independent Executor/Executrix then no court approval is necessary because the Executor/Executrix is independent of the court. The TESTATOR/TESTATRIX is the male/female counterpart and is the person who makes the Last Will & Testament.

          PROBATE means the short process at the beginning of a succession where the Last Will & Testament is presented to the court, is supposed to be examined by the court for proper form and to make certain that it complies with the laws of Louisiana, and an Order is rendered by the court finding all to be in order, ordering the will filed in the Clerk of Court’s office and ordering that the terms of the will be carried out. This is demonstrated on the continuum below.





          If the deceased died intestate, without a will, there is no probate. There is simply a SUCCESSION, which means a determination of who succeeds the deceased as owner and possessor of assets and the assets will be listed with particularity.

          A succession is the process of taking the title to property out of the name of the deceased and placing the title into the names of the proper living persons, either heirs or legatees. An HEIR is one who inherits when there is no will and the law states that he or she inherits from the deceased. A LEGATEE is the person who you and I name in our will when we decide that we are going to make our estate plan. A LEGATEE receives property under the terms of the Last Will & Testament.

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          La. R.S. 9:1731 A TRUST, as the term is used in this Code, is the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.

          In simpler terms, a TRUST is a book of instructions which state who the trust will take care of, who will receive income from the trust and who will receive the remaining corpus at the end of the trust. The CORPUS is whatever assets are in the trust.

          The SETTLOR is the trust maker who has the opportunity to decide the terms of the trust and establish its goals, the people provided for in the trust and who will receive the property at the end of the trust. The Settlor writes or arranges for an attorney to write the Trust or instructions. The Settlor is sometimes referred to as Trust maker or Grantor. Grantor is a term of art and should only be used when the trust is a Grantor’s Trust, that is it meets certain criteria that make it qualify to have the income taxed to the Grantor/Settlor instead of to the Trust. However, the terms are widely used interchangeably.

          A trust may be revocable or irrevocable. REVOCABLE means that the trust may be revoked or changed at any time prior to the Settlor’s death. If the trust is IRREVOCABLE it may not be revoked. One may wonder why one would ever want to make an Irrevocable Trust. There are purposes that one may wish to accomplish that cannot be accomplished with the use of a Revocable Trust. Each type of trust has a purpose.

          An INTER VIVOS Trust takes effect immediately at its signing, so while the Settlor is living. A MORTIS CAUSA Trust is one that is contained in a Last Will & Testament and does not take effect until after the Settlor’s death.

          The TRUSTEE is the person appointed by the Settlor in the trust to administer the trust, take care of and invest the assets, and pay out distributions to beneficiaries according to the trust terms. A successor Trustee is the person who serves as trustee when the original Trustee no longer can serve or chooses not to serve.

          The BENEFICIARY receives something from the trust, either income, principal or the corpus at the termination of the trust. Thus he is called either the Income Beneficiary or the Principal Beneficiary.

          A Trust can do almost anything that you could do with assets; buy and sell real estate, pay bills, make investments, etc.

          Most often with regards to the Revocable Inter Vivos Trust, initially the Settlor, Trustee, and income and principal Beneficiary will be the same persons. This will change upon their disability when the successor trustee will step in to manage the trust. A couple may place their assets into trust so they are the trust makers or Settlors. They may manage their Trust, so they are the Trustees and they may also continue to spend money from the trust, or sell the home that they placed into trust and buy another home within the trust.