A succession may be intestate or testate, depending if the decedent left a will or not. A person dies with a will dies testate, while a person who dies without a will dies intestate. Louisiana's probate codes govern the allocation of property with regard to an intestate succession. However, if the decedent left a will and the court finds it to be valid, the will governs how the property will be allocated.
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According to Louisiana succession law, if the decedent died intestate, the heirs of a decedent must file an ex parte petition with the district court to claim possession of the real estate of the decedent. The heirs may possess the property if the heirs accept the succession and the succession has no debt. If the heirs are incompetent, there must be legal representation to protect the interest in the decedent's property. A surviving spouse can use ex parte petition for possession if she wants to be accepted as the owner of the decedent's property.
If the decedent dies testate, the ex parte petition may allow the legatees to possess the property left by the decedent. The decedent's will rules who receives what if each legatee is competent, using legal representation, accepts the succession and no creditors have surfaced to demand payment for any outstanding bills and payments. If the will names an executor of the estate, the person listed must also be included in the ex parte petition to have the probate court rule in favor of the decedents.
Louisiana succession laws guide the process of probate when a decedent dies with or without a will. First, the court must identify the heirs, evaluate the mental capacity of the heirs and evaluate whether any persons who refuse or want to denounce any interests they hold in the estate exist. The heirs must have the property appraised, review any unpaid bills, evaluate any required tax on the estate, file the inheritance tax return and file a petition for possession.
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Louisiana succession law provides that illegitimate and legitimate children may inherit if the decedent dies intestate. Children who may inherit from the decedent are legitimate children, illegitimate children who later became legitimate by authenticating a birth certificate or later marriage or adopted children.
Types of Property
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Community and separate property have differing laws concerning inheritance in Louisiana. Community property is what the husband and wife own together throughout their marriage, while separate property is what each spouse owns separately of each other. Separate property is property obtained before the marriage or after the death of one of the spouses. The decedent's children will legally inherit the separate property as well as one-half of the community property after the surviving spouse dies.