Anyone just dipping into Louisiana laws will find that they look very different from those in other states, including the legal vocabulary. What most states call "probate," Louisiana calls "succession." It is the legal process of passing the estate of a deceased person to the named beneficiaries if there is a will or, if there is no will, to the legal heirs.
The name of the estate administration process is just one of the many differences in Louisiana probate law. For anyone involved in a Louisiana succession proceeding, it is essential to get an overview of the applicable laws before starting the probate process. It may also be a good idea to consult an experienced legal professional in the state.
What Is Succession in Louisiana?
Under the Louisiana civil code, succession is defined as “the transmission of the estate of the deceased to his successors." This is essentially the process that most states call probate. It involves a court-supervised process of determining whether there is a valid will, identifying beneficiaries and/or heirs at law, paying taxes and debts, and distributing the remainder of the assets.
Those persons in line to inherit from an estate are termed "successors" in Louisiana. In order to determine who is entitled to the estate assets, the first question in the succession process is whether there is a valid will. If so, the process is termed testate succession. If there is no valid will, it is termed intestate succession. The process is different for testate and intestate succession.
What Property Goes Through Succession?
As is the case in probate states, Louisiana succession property, whether testate or intestate, does not include all of the assets an individual owns when they die. Some property is not considered a part of the succession estate.
The non-succession assets include those to which beneficiary designations have been assigned during the lifetime of the decedent. These are also called "payable-on-death" assets. Typical examples of non-succession assets include:
- Payable-on-death bank accounts.
- Investment accounts with beneficiary designations.
- Property held in a living trust.
- Retirement assets, like IRAs and 401(k)s, with beneficiary designations.
- Life insurance policy amounts.
- Insurance annuities.
- Property owned jointly with right of survivorship.
Regarding jointly owned property, this is any real property held in joint tenancy with right of survivorship, where title passes to the survivor or survivors if one owner dies. Special succession rules apply to property held by a married person as community property.
Community Property vs. Separate Property
Louisiana law includes the concept of community property. This means that property purchased by a married person belongs equally to both spouses in most cases. That is, all the earnings of either spouse is considered community property, and all assets purchased with those earnings are also community property holdings.
On the other hand, property inherited by a spouse during marriage and property owned by a spouse before marriage is their separate property. Likewise, all income earned through that separate property is also separate property. For example, if an individual owned rental property before marriage, the rental income will be separate property. This designation may change if separate property and community assets are mingled.
Intestate Succession in Louisiana
If a person dies without a will in Louisiana, their succession property is divided among close relatives under the terms of the state's intestate succession laws. These include the surviving spouse, children, parents and siblings. In the case of a decedent who does not have any of these surviving relatives, the state of Louisiana takes the decedent's property.
Who gets what in an intestate succession is a complex question in Louisiana so it is useful to have an attorney involved. For example, surviving spouses might inherit the entire succession estate if the decedent leaves no surviving children, parents or siblings.
Otherwise, the spouse might inherit a life estate (termed an "usufruct" in Louisiana). Those who inherit after a usufruct, such as surviving children, parents or siblings of the deceased, are termed the "naked owners."
Filing a Louisiana Intestate Succession
Any of the potential heirs of a decedent can file a Louisiana intestate succession. The process requires four different documents to be prepared and filed according to court rules. They are:
- Petition for Possession.
- Affidavit of death, domicile and heirship.
- Detailed descriptive list of the decedent's assets.
- Proposed Judgment of Possession.
The Petition for Possession gives the court the overview of the situation. It describes the facts of the decedent’s death, any marriages and/or divorces, and any children, natural or adopted. It also includes an overview of the type of succession assets and debts as well as a list of potential heirs.
The affidavit of death, domicile and heirship is a document signed by two persons and notarized. It sets out the place and date of death, and the decedent's domicile. It may repeat the list of marriages, divorces and descendants.
The detailed descriptive list sets out the estate’s assets, debts and obligations. Once the judge reviews the first three documents, the court signs the proposed Judgment of Possession. The signed Judgment of Possession, recorded in the court records, acts as a new title of ownership to the succession assets.
Testate Succession in Louisiana
If the decedent left a valid will, it generally takes precedence over the intestate heir statutes. The sole exception is for forced heirs. These persons are entitled to a share of the estate, whether or not they are named in the will. They include children under the age of 24 years or permanently disabled children of any age.
Aside from forced heirs, property in a testate succession passes under the terms of the will. The will can set out life estates and naked owners, or simply the names of those who inherit.
Filing a Louisiana Testate Succession
Where the decedent left a will, the first document to be filed with the court is the original will together with a Petition to Probate the will. In addition, one must file a proposed order admitting the will to probate and recognizing it as the last will and testament of the decedent. Finally, an affidavit of death, domicile and heirship must be filed.
Once the judge signs the proposed order, the representative of the estate must file a detailed descriptive list of the assets, debts and obligations of the estate and the petition for possession.
The petition sets out the terms of the will, who the beneficiaries are and which assets will pass to them. It must also state how the debts and obligations of the estate are to be paid. This document, when signed, becomes the new title for the succession assets.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.