PROBATE & SUCCESSIONS

PROBATE & SUCCESSIONS

Louisiana Successions and Probate

Theus Law Offices is home to experienced Louisiana Successions Attorneys. We recognize the probate process comes at a difficult and sensitive time in the lives of our clients. Our team is here to make the court proceeding happen in the easiest, and fastest way possible. There is no reason to wait, so contact us now to schedule a free initial consultation, or use the link below to schedule a Free 15-Minute Call with an experienced Louisiana Succession Lawyer.  To make the most of your time, please download and return our Probate Worksheet.

What is a Louisiana Succession?

When a person dies, the assets of the deceased person must be conveyed or transferred to the heirs or legatees of the deceased person. Probate is the common law term for the court process of transferring title to assets of a deceased person.  In Louisiana, the court process is referred to as a “succession.”   The terms “probate” and “succession” are used interchangably in Louisiana.

Probate property is, generally speaking, all of your assets which are not held in trust, and which do not pass title by some other means, such as beneficiary designation. If you have no will in place, and your assets are not held in trust, Louisiana law will determine who will receive your probate property when you pass. If you have a properly drafted will, your wishes will be stated as to who your probate assets should go to. This can be a complicated process at an already difficult time, and it is wise to seek legal counsel from a knowledgeable, Louisiana probate attorney.

Understanding the Probate Process

To learn more about the probate process of administering a Louisiana succession and/or ancillary probate in Louisiana, visit these supporting pages of our website:

What Your Louisiana Probate Lawyer Will Do For You

Our legal team of skilled probate lawyers includes a specialist in Estate Administration certified by the Louisiana State Board of Legal Specialization. They will guide you through the process with an eye toward post-mortem planning opportunities, as well as helping you make necessary changes to existing estate and business plans.

We are committed to ensuring that our clients feel well-informed and connected through every stage of the process.

A knowledgable Estate Administration Lawyer is ready to help you with any task you may requests, but normally the Executor or Administrator of an estate will need help with the following:

  • Opening the succession by filing the Will (if the decedent died testate) in the Judicial District Court of appropriate jurisdiction, together with supporting documents, such as affidavits of death;
  • Preparing a Detailed Descriptive List of Assets and Debts (a required inventory of all assets and debts of the estate with fair market value as of the date of the death);
  • Obtaining valuations of business interest or appraisals of real estate and other property;
  • Settling creditor claims against the succession;
  • Arrange for the filing of tax returns;
  • Obtaining a Federal Tax Identification Number for the estate;
  • Working with difficult heirs or legatees;
  • Selling or liquidating assets of the estate;
  • Preparing all necessary pleadings, such as a Petition for Possession and Judgment of Possession;
  • Court appearances; and
  • Obtaining a release and discharge of the Executor or Administrator upon completion of the succession (very important!).

What is a Simple Succession?

There really is no such thing as a Simple Succession.  All successions involve some level of complexity.  In real terms, it takes nearly the same amount of work to probate a single assets (e.g., a residence) as it does for a multi-million dollar estate because all the same documents have to be prepared and filed.  That being said, the term “simple succession” in lay terms may refer to a “small succession,” which qualifies for reduced court costs and may be eligible for an abbreviated affidavit procedure, which does not require a court proceeding.  See below for details.

What is Forced Heirship in Louisiana?

Forced Heirship is alive and well in Louisiana.  A forced heir cannot be disinherited and is automatically entitled to a percentage of the estate of a decedent.

A forced heir is defined as (1) a child of the Decedent who is under twenty-four (24) years of age, or (2) a child of any age who because of a mental or physical condition, are permanently incapable of taking care of their person or administering their estate at the time of the decedent’s death.  (La. Civ. Code art. 1493)

In 2003, the Louisiana legislature expanded the definition of a forced heir to include “descendants who, at the time of death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.”

What does this mean in real terms? Any one who has an inherited mental or physical condition that may render them incapable of caring for themselves at some point in the future is arguably a forced heir in Louisiana. For example, a person with bi-polar disorder is considered a forced heir under Louisiana law. A credible argument can be made for any number of other conditions ranging from diabetes to high colesterol. Suffice it to say, there is a tremendous amount of uncertainty and risk relative to the law of forced heirship in Louisiana.

 

What is the Marital Portion in Louisiana?

When a married person dies in Louisiana, the surviving spouse is entitled to a percentage of the estate if the deceased spouse died “rich in comparison” to the surviving spouse.  (La. Civ. Code art. 2432).  The term “rich in comparison” is not a defined term, however courts in Louisiana generally apply a rule of thumb of a 5:1 ratio.  In other words, if a person dies with assets five times greater than their surviving spouse, then the surviving spouse will be entitled to claim a marital portion from the estate of the deceased spouse.

The marital share cannot be waived in a prenuptial agreement.  Neither earnings, nor earning capacity is taken into account in determining the marital portion.

The amount of the marital portion is one-fourth (1/4) of the succession if the decased spouse died without any children.  If the deceased spouse had three or fewer children, then the marital portion is in the form of a usufruct one-fourth (1/4) of the succession if the decased spouse.  The marital portion is the same as a child’s share if the deceased spouse died with more than three children.

Is Probate a Public Proceeding?

Generally the probate process is public, which means all pleadings and other filings will be open and available to the general public.  However, a recent change in Louisiana law now allows the inventory to be filed “under seal, which means the inventory is no longer available to the general public.  To learn more about filing an inventory “under seal”, please see our blog article entitled, “Revocable Trust No Longer Necessary to Hide Asset Values in Louisiana.

Other Helpful Articles About Probate in Louisiana:

Protecting Everything You Own and Everyone You Love…

The loss of a loved one can be overwhelming. It is not possible for prepare emotionally – even if the loss is expected. Legal issues relating to the probate process can be stressful and challenging. Navigating the process requires that you know the rules and your options.

Whether you need a simple estate administration for a small succession, or require additional legal assistance for a more complicated estate or a will contest, we provide comprehensive, experienced representation.  Our Estate Administration lawyers will guide you through the process with confidence and security. Attorney J. Graves Theus, Jr. has been certified as a specialist in probate and estate administration by the Louisiana State Board of Legal Specialization. Theus Law Offices serves the entire State of Louisiana handling both small and large estates. In addition, Theus Law Offices has successfully litigated numerous contests involving wills and trusts.

If you have questions about a Louisiana Succession, or any other probate topics, please contact our office to schedule a free consultation, or use the link below to schedule your Free 15-Minute Call with an experienced Louisiana Probate Lawyer.

FREQUENTLY ASK QUESTIONS

A Louisiana succession (also known as “probate” or “estate administration”) is simply a court proceeding to move or transfer assets from a deceased person to their heirs or beneficiaries. If a valid last will and testament will exists, the proceeding is to be a “testate succession” whereby assets will be distributed in accordance with the wishes of the decedent. If no will exists, the proceeding is to be an “intestate succession” and Louisiana law will determine how assets are to be divided among the heirs.  A foreign will executed in another state can be admitted to probate in Louisiana as long as it was valid when executed.

The term “succession” is the civil law term for the common law concept of “probate”.  Therefore, a Louisiana Succession is the same thing as a probate in another jurisdiction.  As a practical matter, the term probate and succession are used interchangably in Louisiana, but the proper ther for a probate in Louisiana is a “succession.”

It is NOT possible to avoid probate if someone dies owning an interest in real estate (referred to as immovable property) in Louisiana because Louisiana does not recognize the concept of joint tenancy with right of survivorship.  However, the following assets are not subject to probate in Louisiana, so with some advanced planning it is possible to avoid probate.

  1. Property Already In Trust:  Creating and properly funding a Trust will avoid probate.  Property held in a Revocable Trust or an Irrevocable Trust is not subject to probate.  Such property will be held, administered, and distributed by the Trustee in accordance with the terms of the Trust.
  2. Pay On Death Accounts:  Louisiana allows certain demand deposit accounts (e.g., checking accounts, savings accounts, certificates of deposit) to designated a beneficiary.  These are referred to as “pay on death” accounts.  Although allowed by law, as a practical matter several National banks and many Federal Credit Unions decline allow customers to utilize pay on death accounts.  NOTE:  Investment Accounts are ineligible for POD status.  Louisiana does not recognize the concept of joint tenancy with right of survivorship, so beneficiary designations for investment accounts are not allowed or effective in Louisiana.
  3. Nonprobate Assets:  The term “probate assets” refers to assets which are subject to Probate in Louisiana.  The term “non-probate assets” refers to assets that are governed by beneficiary designation, such as retirement plans, IRAs, life insurance, and annuities.  These assets are governed by beneficiary designation, meaning the beneficiary of a non-probate asset will receive the proceeds of the asset directly without the need for a probate.  However, if a non-probate asset is owned on the life of another person (e.g., one spouse owns a life insurance policy on the life of another spouse), then a probate will be required to transfer the non-probate asset itself (e.g., a life insurance policy) if the owner dies.
  4. Usufruct Property:  Property subject to Louisiana usufruct is not subject to probate.  A usufruct is a civil law concept that is basically like a life estate in common law states (any state other than Louisiana).  The usufructuary maintains a right of use and when the usufruct terminates, the property is automatically vested in the “naked owners” who are named at the outset of the usufruct.  A naked owner in Louisiana is like a remainder person in a common law jurisdiction.

The Louisiana Inheritance Tax was repealed.  There is no longer a requirement to file an inheritance tax return with the Louisiana Department of Revenue and no inheritance tax is owed.

Louisiana was a “sponge tax” state.  Before the repeal of the Federal credit for estate taxes paid to a state, Louisiana received an estate tax equal to the Federal credit.  The Federal credit was repealed under the Economic Growth and Tax Reconciliation Act of 2001. Therefore, no estate taxes are due to the State of Louisiana for estates subject to Federal Estate Tax.  Estates that exceed  $11.58 million in 2020 are subject to Federal Estate Tax.

Debts to not go away and debts must be “paid or provided for” before asset of an estate may be distributed to heirs or legatees in Louisiana.  This does not mean that a mortgage on a house must be paid at death because debts follow assets in Louisiana. Whoever receives an asset that is associated with a debt becomes responsible for continued payment of the debt.  Following this example, an heir or legatee who receives a house subject to a mortgage would be responsible for continued payment of the mortgage.  Credit cards are unsecured debts that are not associated with any particular asset.  Therefore, credit card debt must be paid before assets can properly be distributed to heirs or residual legatees.  Specific legatees (those receiving specific bequests under a Last Will and Testament) are not respsonsible for the payment of estate debts in Louisiana, unless the estate is involvent, in which case estate debts are to be allocated in accordance with specific provisions of Louisiana law.

The probate process in Louisiana normally takes six to twelve months.  Technically, if all is in order a succession can be completed very quickly, but as a practical matter it is rare that a person dies with all their ducks exactly in a row.  It takes time to gather details (some hidden) about assets, as well as obtain values from financial institutions or appraisals of real estate, and to prepare necessary pleadings to be filed with the Court of appropriate jurisdiction.  If there are problems, including disputes, the probate process can get bogged down for years. But absent disputes among heirs or legatees or protracted creditor claims, a succession should be completed in well under twelve months.

An Admininistrator is the person charged with responsibility for an intestate succession.  An intestate succession is required when someone dies without a will.

Assets owned by a person who dies without a Will or Trust are distributed according to the laws of the State of Louisiana.  The probate process is referred to as an “intestate succession”, which is a successon for someone who dies intestate (without a will).  People who are in line to receive assets of a person who died without a Will are “intestate heirs”.

An Executor is the person charged with responsibility for administering a Testate Succession.  A Testate Succession is required when someone dies with a valid Last Will and Testament. The preferred Executor is normally named in a Will by the Testator.

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