Inheritance laws in the state of Louisiana can be complex. For example, the state refers to probate as "succession." It also applies a legal right called "usufruct" to a decedent's property, which allows a beneficiary to use the deceased's property for as long as they live while another beneficiary owns it.
Another unusual aspect of Louisiana's inheritance laws involves "forced heirship," a legal concept that guarantees an inheritance for an heir under 24 years old or one that is permanently disabled or incapacitated.
Inheritance Laws With a Will
Louisiana probate is a process through which the courts recognize a person's last will and testament as valid, enforce its terms, and transfer ownership of that person's assets to their heirs when they die. If the decedent leaves a will, this is known as "testate succession." To be valid, the will must be signed by the testator and two witnesses.
The state requires that a notary public sign the will and be present when the witnesses sign the will. The will names an executor who will manage the estate after the testator dies and names the heirs who will inherit the assets.
Payment of Debts and Estate Taxes
The executor pays the decedent's outstanding debts using the estate's assets, files their final tax returns, and distributes the remaining assets to the heirs. According to Louisiana law, an executor must be at least 18 years old and of sound mind. They cannot be a convicted felon or someone of bad moral character.
Authorizing a Corporate Executor
If the testator wishes to name a corporation as executor, that company must be authorized by the court to perform that duty. The probate process can take from six months to a year to complete, but, in more complex situations, it may take several years before heirs receive the estate's assets.
How to Avoid Probate in Louisiana
Estates with a value under a specific amount can avoid probate altogether. Those with a collective value of less than $125,000 can file a small estate affidavit, known in Louisiana as an "affidavit of small succession." If the decedent has been dead for a minimum of 20 years, there is no value limitation on the estate. To file the affidavit of small succession, a person must:
- Wait a minimum of 90 days after the decedent passes, if the affidavit includes immovable property like real estate.
- Publish a notice of the property's public sale in the county of location. The sale of the property should occur between 10 and 15 days after the date of publication.
Two people, including the surviving spouse (if there is one) and one or more competent heirs, must sign the affidavit in the presence of a notary public.
Louisiana Intestate Succession Laws
In Louisiana, a decedent's assets are distributed through intestacy law when someone dies without a will. Only property that would have passed through a will can be passed intestate. The following assets would not be in a will or distributed through intestacy. Instead they pass to a surviving co-owner or beneficiary:
- Property the decedent transferred to a living trust.
- The decedent's life insurance proceeds.
- Funds from an IRA, 401(k), or other retirement accounts.
- Funds from payable-on-death bank accounts.
- Property the deceased owned with another person through joint tenancy.
Under Louisiana's intestate rules, the deceased person's assets will go to their relatives, starting with their spouse and children and extending to other family members depending on the degree of relationship to the decedent.
How intestate law applies depends on if the decedent's property is community property (acquired after marriage) or separate property (acquired before marriage). Louisiana considers gifts and inheritances given to a spouse as separate property, even if they were received during marriage.
Distribution of Assets Under Intestacy
In Louisiana, the assets of a person who died without leaving a will are distributed to surviving descendants as follows:
- If there are children but no spouse, the children inherit the deceased's assets.
- If there is a spouse but no parents, children or siblings, the spouse inherits the deceased's assets.
- If there are parents but no spouse, children or siblings, the parents inherit the deceased assets.
- If there are siblings but no spouse, children or parents, the siblings inherit the deceased assets.
If the decedent leaves behind a spouse and children, the spouse has the right to use the deceased's community property for as long as they live; this is known as "usufruct."
Children will inherit their share of community property subject to the surviving spouse's right to use it, plus the decedent's separate property. If the decedent leaves behind parents and a spouse, their parents will inherit the decedent's separate property, and the spouse will get their community property.
Intestate Succession with Siblings and No Children
If they leave behind a spouse and siblings, the spouse receives the decedent's community property, and the siblings get their separate property. Finally, if survivors of the deceased are siblings and parents, the siblings inherit everything, but the parent can use the asset for life.
Forced Heirship in Louisiana
Louisiana is the only state that uses "forced heirship," which prohibits the disinheritance of a person under 24 years old or one that is permanently disabled or incapacitated. However, forced heirs can be disinherited under some circumstances – for example, if they commit violence against a parent.
The state considers grandchildren forced heirs if their parent (the decedent's child) died before the decedent, if they are under 24 or incapacitated when that person passes. One forced heir is generally entitled to 25 percent of the decedent's estate. Two or more children must share half of the estate as collective forced heirs. Forced heirship has one limitation – each forced heir will receive no more than they would have received if the decedent died intestate.
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.