A testamentary trust is created inside your will and comes into existence at the moment of your death, so in almost every case the will still goes through succession. What the trust decides is who manages your property afterward, and on what terms.

Louisiana Trust Terms Built to Survive Forced Heirship

Buhrer Law Firm drafts testamentary trusts for families in Metairie, across Jefferson Parish, and throughout the greater New Orleans area. A testamentary trust is written into your will, and Louisiana treats it as a donation mortis causa, so it must satisfy the same form requirements as the will and the same Trust Code rules that govern every Louisiana trust. As an experienced Metairie estate planning lawyer, R. Scott Buhrer has more than 35 years of experience in Louisiana estate and succession matters, and he builds these provisions into a broader estate plan.

Why Metairie Families Trust Buhrer Law Firm

Estate planning is judgment work, and Louisiana rewards experience. Here is what our clients rely on.

  • More than 35 years in Louisiana practice: Mr. Buhrer has handled estate, trust, and succession matters for Louisiana families for more than 35 years.
  • Court appointments as a Special Master: Family law judges in Jefferson, St. Tammany, and Orleans Parishes appoint him to Special Master roles in complex cases, where his recommendations to the court carry real weight.
  • An AV Preeminent rating: Martindale-Hubbell recognizes his professional standards and legal ability at its highest rating.
  • A financial background too: He holds a Tulane MBA, which matters when a trust holds a business or rental property.
  • Individualized drafting, not forms: He recommends the most cost-effective structure that meets your goal.

That combination is why Metairie and New Orleans families bring us situations and needs that do not fit a template and should not be handled by just any law firm. 

How a Testamentary Trust Works Under Louisiana Law

Families ask about a testamentary trust for one of two reasons. Either a beneficiary is too young or too vulnerable to inherit outright, or the property needs managing. A trust can do both, but Louisiana is a civil law state and the Trust Code limits what those provisions may say.

Louisiana defines a trust as testamentary when it is created by donation mortis causa, meaning in your will. It may take only one of the forms the law prescribes for donations mortis causa, so a defect in the will’s execution is a defect in the trust. The trust is created at the moment of your death, not before.

That timing carries a consequence people miss. A testamentary trust does not by itself remove your property from the succession process, because the instrument creating it is your last will and testament. That is specific to testamentary trusts. A trust you create and fund during your life can hold assets that pass outside succession, but a trust written into your will cannot, because the will is what brings it to life.

What Forced Heirship Means for Your Trust

Louisiana reserves a portion of an estate, called the legitime, for forced heirs. Under the Civil Code, forced heirs are descendants of the first degree, meaning your children, who are twenty-three years of age or younger when the parent dies, plus those of any age who are permanently incapable of caring for themselves or administering their estates because of mental incapacity or physical infirmity. 

Only children are forced heirs in their own right. Grandchildren are not, but a grandchild can step into a deceased parent’s place by representation in limited circumstances, generally where that parent died before you and would still have been twenty-three or younger when you die.

You may place a forced heir’s legitime in trust, but only on the conditions Louisiana law sets for a forced heir’s share held in trust. Those conditions shape the drafting.

  • Income has to reach the heir: After accounting for the heir’s other income and support that year, the trustee must distribute net trust income sufficient for the heir’s health, maintenance, support, and education, either to the heir or to the heir’s legal guardian.
  • No extra strings: The forced heir’s interest may carry no charges or conditions beyond the ones the Trust Code expressly allows.
  • A ceiling on duration: Except as the statute permits, the term of the trust as it affects the legitime may not exceed the heir’s own lifetime.
  • Principal comes out free of trust: When the portion affecting the legitime ends, principal must be delivered to the heir, or to the heir’s heirs, legatees, or assignees, free of trust.

There is still room to plan inside those boundaries. The instrument may restrain alienation of the legitime in trust, and the legitime may be burdened with an income interest or a usufruct for a surviving spouse, to the same extent and for the same period a usufruct of that property could be given to that person. Fitting a spouse and children into one workable structure is the problem we solve.

Trust Terms That Fit New Orleans Area Families

Once the legitime is handled, the rest is yours to shape. Two options come up constantly.

The first is the class trust. Louisiana lets you create a testamentary trust for a class made up of your children, grandchildren, and great grandchildren, and your nieces, nephews, grandnieces, grandnephews, great grandnieces, and great grandnephews, or those same relatives of a current, former, or predeceased spouse. Members not yet born may be included, so long as one member of the class is alive when the trust is created. For a growing family, that is the difference between a plan rewritten after every birth and one that is not.

The second is the power to invade principal. Your instrument may direct or permit the trustee to pay principal to an income beneficiary for support, maintenance, education, or medical expenses, or for any other purpose under an objective standard. How much discretion the trustee gets, and whose share those payments are charged against, get decided while drafting, or argued about later when nobody decided them.

Talk With a Metairie Testamentary Trusts Lawyer

If you are weighing whether a trust belongs in your will, the next step is a conversation about your family and your property. To arrange an initial consultation, contact the Buhrer Law Firm to get started. Our office is at 3017 21st Street, Suite 110 in Metairie, and we serve Jefferson Parish and greater New Orleans.

Frequently Asked Questions

Does a testamentary trust avoid succession in Louisiana?

Almost never. A testamentary trust is created by your will, and the will normally has to be presented in a succession proceeding. Louisiana excuses judicial opening only for certain small successions, and for someone who died with a will that route also requires no Louisiana immovable property and agreement by the surviving spouse and everyone who would inherit to waive probate.

Can I put my child’s forced portion in a trust?

Yes, within limits. The legitime may be placed in trust only if the trustee distributes net income sufficient for the child’s health, maintenance, support, and education after accounting for other income the child receives, the interest carries no conditions beyond those the Trust Code allows, the term does not outlast the child’s life except as permitted, and the principal comes out free of trust when that portion ends.

What if my family grows after I sign my will?

A class trust can address that. Louisiana permits a testamentary trust for a class of children, grandchildren, and other listed relatives even though some are not yet in being when the trust is created, provided at least one member of the class is alive then.

Testamentary Trusts
A testamentary trust is created inside your will and comes into existence at the moment of your death, so in almost every case the will still goes through succession. What the trust decides is who manages your property afterward, and on what terms.

Louisiana Trust Terms Built to Survive Forced Heirship

Buhrer Law Firm drafts testamentary trusts for families in Metairie, across Jefferson Parish, and throughout the greater New Orleans area. A testamentary trust is written into your will, and Louisiana treats it as a donation mortis causa, so it must satisfy the same form requirements as the will and the same Trust Code rules that govern every Louisiana trust. As an experienced Metairie estate planning lawyer, R. Scott Buhrer has more than 35 years of experience in Louisiana estate and succession matters, and he builds these provisions into a broader estate plan.

Why Metairie Families Trust Buhrer Law Firm

Estate planning is judgment work, and Louisiana rewards experience. Here is what our clients rely on.

  • More than 35 years in Louisiana practice: Mr. Buhrer has handled estate, trust, and succession matters for Louisiana families for more than 35 years.
  • Court appointments as a Special Master: Family law judges in Jefferson, St. Tammany, and Orleans Parishes appoint him to Special Master roles in complex cases, where his recommendations to the court carry real weight.
  • An AV Preeminent rating: Martindale-Hubbell recognizes his professional standards and legal ability at its highest rating.
  • A financial background too: He holds a Tulane MBA, which matters when a trust holds a business or rental property.
  • Individualized drafting, not forms: He recommends the most cost-effective structure that meets your goal.

That combination is why Metairie and New Orleans families bring us situations and needs that do not fit a template and should not be handled by just any law firm. 

How a Testamentary Trust Works Under Louisiana Law

Families ask about a testamentary trust for one of two reasons. Either a beneficiary is too young or too vulnerable to inherit outright, or the property needs managing. A trust can do both, but Louisiana is a civil law state and the Trust Code limits what those provisions may say.

Louisiana defines a trust as testamentary when it is created by donation mortis causa, meaning in your will. It may take only one of the forms the law prescribes for donations mortis causa, so a defect in the will’s execution is a defect in the trust. The trust is created at the moment of your death, not before.

That timing carries a consequence people miss. A testamentary trust does not by itself remove your property from the succession process, because the instrument creating it is your last will and testament. That is specific to testamentary trusts. A trust you create and fund during your life can hold assets that pass outside succession, but a trust written into your will cannot, because the will is what brings it to life.

What Forced Heirship Means for Your Trust

Louisiana reserves a portion of an estate, called the legitime, for forced heirs. Under the Civil Code, forced heirs are descendants of the first degree, meaning your children, who are twenty-three years of age or younger when the parent dies, plus those of any age who are permanently incapable of caring for themselves or administering their estates because of mental incapacity or physical infirmity. 

Only children are forced heirs in their own right. Grandchildren are not, but a grandchild can step into a deceased parent’s place by representation in limited circumstances, generally where that parent died before you and would still have been twenty-three or younger when you die.

You may place a forced heir’s legitime in trust, but only on the conditions Louisiana law sets for a forced heir’s share held in trust. Those conditions shape the drafting.

  • Income has to reach the heir: After accounting for the heir’s other income and support that year, the trustee must distribute net trust income sufficient for the heir’s health, maintenance, support, and education, either to the heir or to the heir’s legal guardian.
  • No extra strings: The forced heir’s interest may carry no charges or conditions beyond the ones the Trust Code expressly allows.
  • A ceiling on duration: Except as the statute permits, the term of the trust as it affects the legitime may not exceed the heir’s own lifetime.
  • Principal comes out free of trust: When the portion affecting the legitime ends, principal must be delivered to the heir, or to the heir’s heirs, legatees, or assignees, free of trust.

There is still room to plan inside those boundaries. The instrument may restrain alienation of the legitime in trust, and the legitime may be burdened with an income interest or a usufruct for a surviving spouse, to the same extent and for the same period a usufruct of that property could be given to that person. Fitting a spouse and children into one workable structure is the problem we solve.

Trust Terms That Fit New Orleans Area Families

Once the legitime is handled, the rest is yours to shape. Two options come up constantly.

The first is the class trust. Louisiana lets you create a testamentary trust for a class made up of your children, grandchildren, and great grandchildren, and your nieces, nephews, grandnieces, grandnephews, great grandnieces, and great grandnephews, or those same relatives of a current, former, or predeceased spouse. Members not yet born may be included, so long as one member of the class is alive when the trust is created. For a growing family, that is the difference between a plan rewritten after every birth and one that is not.

The second is the power to invade principal. Your instrument may direct or permit the trustee to pay principal to an income beneficiary for support, maintenance, education, or medical expenses, or for any other purpose under an objective standard. How much discretion the trustee gets, and whose share those payments are charged against, get decided while drafting, or argued about later when nobody decided them.

Talk With a Metairie Testamentary Trusts Lawyer

If you are weighing whether a trust belongs in your will, the next step is a conversation about your family and your property. To arrange an initial consultation, contact the Buhrer Law Firm to get started. Our office is at 3017 21st Street, Suite 110 in Metairie, and we serve Jefferson Parish and greater New Orleans.

Frequently Asked Questions

Does a testamentary trust avoid succession in Louisiana?

Almost never. A testamentary trust is created by your will, and the will normally has to be presented in a succession proceeding. Louisiana excuses judicial opening only for certain small successions, and for someone who died with a will that route also requires no Louisiana immovable property and agreement by the surviving spouse and everyone who would inherit to waive probate.

Can I put my child’s forced portion in a trust?

Yes, within limits. The legitime may be placed in trust only if the trustee distributes net income sufficient for the child’s health, maintenance, support, and education after accounting for other income the child receives, the interest carries no conditions beyond those the Trust Code allows, the term does not outlast the child’s life except as permitted, and the principal comes out free of trust when that portion ends.

What if my family grows after I sign my will?

A class trust can address that. Louisiana permits a testamentary trust for a class of children, grandchildren, and other listed relatives even though some are not yet in being when the trust is created, provided at least one member of the class is alive then.