Louisiana's succession law is, in some ways, dissimilar to the legal systems of other states. Probate is known as "succession" in the Bayou State, and that's not the only difference in the estate process. For example, a beneficiary has the legal right to use a decedent's property for life while another beneficiary owns it, and there are other unusual aspects to Louisiana's estate laws.
Testate vs. Intestate Succession
"Testate succession" describes the estate of a person who left a valid will when they died. Typically, this requires only two elements: the will must be a written document and the deceased must have been legally competent to make decisions at their death.
In the state of Louisiana, a valid will must be signed by the testator (the person creating it) and two witnesses with a notary public present when they sign. The will names an executor to manage the testator's estate and the heirs who will inherit their assets.
Assets Not Included in a Last Will and Testament
If a person dies "intestate" in Louisiana, a will may or may not have existed, but if there was a will, it was deemed to be invalid and unenforceable. When someone dies without a valid will, state law governs who gets their assets, but only those types of assets that would typically pass through a will are affected. For example, these assets would automatically pass outside of a will to the surviving co-owners or beneficiaries as set up by the decedent:
- Property transferred by the deceased person to a living trust.
- Life insurance policy proceeds.
- IRA, 401(k) or other retirement account funds.
- Payable-on-death bank account funds.
- Property the decedent owned with someone else through joint tenancy.
Succession Process in Louisiana
When a person dies in Louisiana, and they have left a valid will naming the estate executor and beneficiaries, it is the executor's responsibility to collect and manage the decedent's assets and pay their debts and taxes from the estate before distributing their property.
Louisiana law states that executors must be at least 18 years old and of sound mind, and they cannot be someone of bad moral character or a convicted felon. If the testator names a corporation as the executor, it must be authorized to perform that duty. If someone dies without a will, the court will appoint an administrator – known as a personal or succession representative – to manage the estate.
Once a succession representative has fulfilled their duties, they distribute the remaining assets to the decedent's beneficiaries. Louisiana succession lawyers prepare the documents required to close an estate and present them to the court for an order known as a "judgment of possession." This order is necessary for the transfer of the estate assets. Succession in Louisiana takes up to six months to complete, but some estates can remain open for years.
Succession Without Administration
There are different categories of succession in Louisiana. "Succession without administration" does not require an estate representative or a court proceeding. If the deceased person left a valid will with no debts, and all the heirs named in the will are competent and in agreement, a succession attorney can create a judgment of possession to distribute the decedent's assets.
If there are questions about the validity of a will, debts left by the decedent, or the heirs are in dispute regarding assets, the process is known as "succession with full administration." The court will appoint a succession representative and oversee the probate process in this instance; then, a succession attorney can put together documents for the judgment of possession.
Avoiding Probate in Louisiana
Estates with a collective value of less than $125,000 can avoid probate via a small estate affidavit or "affidavit of small succession." If the decedent has been dead for at least 20 years, there is no value limitation on the estate. To file a small estate affidavit, a person must:
- Wait at least 90 days after the person dies to file the affidavit if the estate includes immovable property, such as real estate.
- Publish a notice in a newspaper of the immovable property's public sale in the county of location, which should occur between 10 and 15 days of publication.
To be valid, the surviving spouse (if applicable) and one or more competent heirs must sign the affidavit of small succession in the presence of a notary public.
What Is Intestacy Law?
Under Louisiana's succession laws regarding intestacy, the deceased person's assets will go to their spouse and children and then extend to other family members. How intestacy applies depends on whether the decedent's property is community property (obtained after marriage) or separate property (obtained before marriage).
The state considers inheritances and other gifts given to a spouse as separate property, even if they receive them during the marriage.
Under Louisiana intestate succession laws, the distribution of assets depends on the family member's relationship to the decedent:
- If there are surviving children but no spouse, the children inherit the assets.
- If there is a surviving spouse but no children, parents or siblings, the spouse inherits the assets.
- If parents survive the decedent and there are no children, siblings or spouse, the parents will inherit the assets.
- If siblings survive the decedent, and there are no children or spouse, the siblings will inherit the assets.
What Is Usufruct in Louisiana?
If the decedent leaves behind a wife or husband and children, the spouse has the legal right to use the community property for as long as they live under the rule of "usufruct." Children will inherit the decedent's share of the community property (with the spouse's right to use it), plus their separate property.
Between a decedent's surviving parents and spouse, the parents will inherit a decedent's separate property, and their spouse will inherit their community property. If a spouse and siblings survive the deceased, the spouse will receive the community property, and the siblings will get their separate property. Finally, if siblings and parents survive, the siblings will inherit everything, but their parents can use the property for life.
What Is Forced Heirship?
Louisiana's "forced heirship" law prohibits the disinheritance of someone under the age of 24, or someone who is permanently disabled or incapacitated. However, there are some circumstances under which disinheritance can occur:
- Physical violence against a parent.
- Cruelty, crime or grievous injury against a parent.
- Attempted murder of a parent.
- Falsely accusing a parent of committing a crime with the punishment of life in prison or death without reason.
- Using violence or coercion to prevent a parent from creating a will.
- Minor marrying without parental consent.
- Having a criminal conviction with the punishment of life in prison or death.
- Failing to communicate with a parent without just cause two years after turning 18 and knowing how to contact them, except if the child is on active duty in the military.
Louisiana considers grandchildren to be forced heirs if their parent (the decedent's child) died before the grandparent died, or if they are under 24 years old or incapacitated. A forced heir is entitled to 25 percent of a decedent's estate. Two or more siblings must share half of the decedent's estate, but a forced heir will receive no more of the estate than they would have received had the deceased died intestate.
- Find Law: Louisiana Code of Civil Procedure Tit. III, Art. 3097. Disqualifications
- Louisiana Succession Attorney: Estate Administrators Have Important Responsibilities in Louisiana
- Louisiana Succession Attorney: Before Property Can Be Inherited in Louisiana, Heirs Will Need a Judgment of Possession
- Find Law: Louisiana Code of Civil Procedure Tit. V, Art. 3421. Small successions defined
- Legacy Estate and Elder Law of Louisiana: Louisiana Intestate Law
- NOLO: Intestate Succession in Louisiana
- Louisiana Succession Attorney: Parents Can Disinherit a Child in Louisiana Under These Circumstances
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.