As you begin the process of creating your Estate Plan and deciding how you will divide up your assets, you may be wondering if there are any legal stipulations that you should know about in advance. For example, are there any legal rules stating that it is mandatory to leave portions of your Estate to certain people? Your immediate thought might be no, but you may not be correct in this assumption. You will most likely be surprised to learn that there is such a thing as Forced Heirship.
Here at Trust and Will, we know how complicated and confusing legal rules on inheritance and estate planning can seem. We want to do what we can to help make estate planning easier for you.
What is Forced Heirship?
Forced Heirship is a legal stipulation by which a portion of the deceased’s assets must be awarded to their heirs. With a Forced Heirship, it is actually illegal to disinherit your children, which means your children are granted the legal right to inherit part of your assets, even if you have stated in your Will that you do not want them to inherit any of your assets. Additionally, if your child passes away before you do, then your grandchildren may gain beneficiary rights under Forced Heirship state mandates.
What are the forced heirship rules?
In a Forced Heirship, there are specific rules as to who falls under the Forced Heirship requirements, as not all Heirs will fall within the guidelines. There are two specific qualifications for Forced Heirship, and your Heirs must meet one of the two requirements to obtain legal rights to your assets.
In order for Forced Heirship to be legally binding, your children must be under the age of 24. Once they are over 24 years old, they will no longer have the legal right to any portion of their parents’ assets, unless they fall under the second rule.
Physical and Mental Conditions
If your Heir has either a physical or mental condition that leaves them incapable of being responsible for themselves and taking care of themselves on their own, they may fall under Forced Heirship requirements. This rule applies regardless of the age of the beneficiary in question.
How much of your inheritance will Forced Heirs be entitled to?
If there is only one heir, that heir will be entitled to 25% of your assets. If there is more than one heir, the living heirs will be entitled to half of your assets that will be split equally among the heirs.
However, your Forced Heirs are not entitled to all of your assets. Specifically, IRAs, 401k accounts, and life insurance policies are not included within the assets that will be used to calculate the amount of money your Forced Heirs will receive.
How does forced heirship work?
It is important to note that Forced Heirships are not mandatory in all states. In fact, Forced Heirships are only required within one state in particular: Louisiana. If you reside in Louisiana, you will want to determine whether or not your children will fall under the Forced Heirship requirements.
How can forced heirships be avoided?
Forced Heirships are able to be terminated if they fall under a set of exceptions made by the state of Louisiana. In these specific cases, you will not be forced to leave your children any inheritance.
Forced Heirships can be terminated if your Heir does any of the following:
Took any physical form of threat against you, including using violence to keep you from creating a Will
They attempted to kill you or were convicted of some other crime against you
They were convicted of a crime that landed them life in prison
Accused you of a crime punishable by death that you did not commit
If after reaching legal adulthood, they neglected to contact you for a period of 2 years, unless in they were in the military
They are a minor that married without your consent
What are my options?
If you are not legally able to disinherit your heir(s), then you may want to consider putting the inheritance that your Heir would be entitled to within a Legitime Trust. This form of Trust is used specifically in cases of Forced Heirship and must follow the rules to be legitimate:
All assets owed to the Forced Heir put within the Trust must be used for the health, education, support, or maintenance of the Heir
It must be free of all constraints other than the normal Trust constraints
The Trust cannot exceed the life of the Forced Heir
Once the Trust is terminated, the Heir must receive all assets within it
Although this option does not allow you to disinherit your heir, it does give you a measure of control over how their inheritance will be used. Through a Legitime Trust, you are able to make sure that the inheritance is only allocated for the benefit of the Heir.
Creating an Estate Plan online can help you avoid an otherwise time-consuming and costly process, especially when factoring in legal stipulations such as Forced Heirships. At Trust & Will, we’re here to provide you with all the tools you’ll need to complete your Estate Plan online at a fraction of the time and expense you'd absorb were you to hire a law firm to help you. With our online estate planning services, including creating your Will, Trust-Based Estate Plan, and Nomination of Guardian documents, it is easier than ever to create a comprehensive state-specific Estate Plan and legal documents that you can download from your own home.
Wondering where to begin? Allow us to point you in the right direction with our free online quiz. If you find you would like additional help creating your customized, legal estate planning documents, we also offer attorney assistance. What are you waiting for? Take control of your legacy and get started today!