When a relative dies, Louisiana's probate code provides an orderly process to distribute the estate property. While every estate is different, they all require a judgment of possession before the property may be transferred to the heirs. Probating an estate is complex, but every step is necessary to ensure the fair distribution of the property.
What Constitutes an Estate?
The decedent's property, both assets and liabilities, make up the estate. Experience has shown that relatives cannot be trusted to conduct a fair distribution of an estate without supervision. Sometimes an heir will claim that he was cheated; occasionally, that turns out to be true. To maintain fair treatment, the courts have mandated judicial supervision over the distribution of estates. The process is called probating the estate. Where there is a will, estate property and available heirs, probate is required by law.
Probating an Estate
The first step is to file the will with the probate clerk. The will may be challenged, however. There may be more than one will. There may also be questions of validity, such as whether the will was signed under duress. Once these questions have been resolved, the competence of the heirs must be addressed. Prior to the conclusion of the estate, all of the heirs will be asked to sign a document accepting a proposed settlement of the estate. It is necessary, therefore, that all of the heirs be legally competent to sign. Heirs who are minors and adults who are incompetent will require a guardian.
Taxes and Other Liabilities
The extent of the estate must be determined. An accountant must review the assets, and a property appraiser must assess the value of any land holdings. In addition, the decedent's debts must be tallied and an estate tax return prepared. These preparations allow a determination of outstanding obligations incurred by the decedent. Any estate property remaining after the debts are paid will be distributed to the heirs as dictated by the will.
Where there is no will, the probate court will turn to the rules of intestate succession. In Louisiana, this places all of the heirs in strict order according to their relationship to the decedent. The amount they inherit also depends upon the type of property involved. Generally, the spouse of the decedent is entitled to the first half of all property, with the balance being shared equally with the heirs. It has been said, however, that Louisiana's intestate succession rules are the most complicated in the United States, and this simplified statement is subject to numerous exceptions.
The Judgment of Possession
The estate will be ready to resolve after the value of the estate has been determined to the satisfaction of the heirs, the amount of debt calculated, and the entitlement of the different heirs has been assessed. At this point, a petition for possession is filed with the probate court. The petition will affirm that the foregoing matters have been resolved and that all of the affected parties are in agreement. The probate judge will then issue the judgment of possession. The judgment is an order directing disposition of the property in a certain way. It allows property to be re-deeded, automobiles to be re-titled, and bank accounts to be emptied, all without the signature of the deceased legal owner. In accordance with the import of such a document, it can only be obtained after careful review and, in the absence of a contested hearing, complete agreement by those involved.
Art Smithers is a Florida lawyer who was admitted to the bar in 1985. Now a professional writer, his experience and background include work in business, corporate, estate, juvenile, appellate and family law. Smithers is board-certified in the state of Florida.