Guide to Probate and Succession In Louisiana: What You Need To Know
When someone dies, a common issue that many families and loved ones face is how to handle the transfer of property and assets moving forward. Fortunately, Louisiana has extensive probate and succession laws that help govern the transfer of property after someone’s death. However, the process is not always easy.
At the Johns Law Firm, we want to make sure you have the tools and information necessary to navigate the process. Read on for an in-depth guide on probate and succession laws in Louisiana.
Louisiana: Probate or Succession?
Louisiana is different than other states. You might have heard the term “probate” before to describe the process of administering a person’s will or their estate. Louisiana instead refers to this process as “succession,” but the concept is substantially the same.
Succession in General
In general, the succession process in Louisiana governs the administration and settling of a person’s estate after their death.
A person’s estate includes all their property when they die, including any debts and remaining assets.
For these reasons, it is important to have some understanding of how succession works in Louisiana.
Types of Succession
Successions in Louisiana can be classified as “testate” or “intestate.” Knowing which type of succession applies can help determine how the process will be handled.
Testate succession occurs when a person had a valid will upon their death. In Louisiana a valid will can be either handwritten (“olographic”) or typed (“notarial”). A person who has passed away is often referred to as a “decedent” when discussing their succession. If a person dies testate, then the decedent’s will generally governs who inherits their estate and how it is divided.
Intestate succession can occur in three scenarios: (1) when a decedent dies without a will at all, (2) when a decedent dies with a will that is determined to be partially or completely invalid, or (3) when a decedent dies with a will that does not dispose of all of the decedent’s property. If a decedent dies intestate, the succession process may be more complicated.
Alternatives to Judicial Succession
Judicial succession proceedings are managed by the courts and can sometimes be a long and expensive process. Before moving forward with judicial succession proceedings, it is important to first determine if succession is necessary at all. Depending on the specific facts and circumstances, a decedent’s estate may not have to go through a judicial succession at all.
If a decedent has a “small” estate, their property may be transferred upon a decedent’s death without a formal succession proceeding. In Louisiana, a small estate is one where the gross estate value is worth less than $75,000, without accounting for any debts, liabilities, or outstanding mortgages.
If this is the case, heirs and surviving spouses who are in unanimous agreement may issue a small estate affidavit, which will allow them to collect any portions of the estate allegedly owed to them by the decedent.
Instead of the standard succession process which involves filing a matter in court, the small succession process is completed via affidavit which should, in most case, result in greatly reduced filing fees due to state and parish entities.
Note that, even with a small succession affidavit, heirs will be required to file the completed affidavit in the appropriate mortgage and conveyance records when the decedent owned a home or other immovable property as part of their estate.
If a decedent was married at the time of their death, money from their bank account can be transferred under certain circumstances without a succession proceeding. A spouse who provides the decedent’s bank with an affidavit can transfer up to $10,000 from the decedent’s account without court intervention.
Louisiana law also allows employers to directly pay a decedent’s spouse up to $6,000 in wages, sick or annual leave, or benefits upon the decedent’s death. However, if either the decedent or surviving spouse previously initiated a divorce proceeding, this alternative will not apply to the spouse. In this case, the employer may instead pay these last wages to any adult child of the decedent.
With respect to motor vehicles, a decedent’s survivors can complete an “affidavit of heirship” to transfer title. This form is used when a vehicle is registered in the name of a decedent and the decedent’s surviving spouse or other heirs want to confirm their ownership interest in the vehicle.
In some scenarios, a bank may transfer up to $5,000 to a decedent’s spouse and/or heirs without court intervention. However, this alternative is only available where a decedent died intestate, or without a will. To do this, the decedent’s survivors must provide the bank with an affidavit confirming proper jurisdiction, their relationship to the decedent, and the fact that the decedent did not leave a last will and testament.
Non-Succession Assets: Does All Property Go Through Succession?
Not all property must go through succession in Louisiana. Sometimes, succession is not necessary at all depending on the types of assets the decedent owned upon their death.
Certain types of property are not considered a part of your succession estate and will be subject to their own rules instead of the general rules of succession. Assets that do not need to go through succession typically include the following:
- Retirement assets,
- Life insurance policies,
- IRAs, and
The heirship of these types of assets generally are determined by beneficiary designation rules created by the asset holder, instead of through succession. This means that whoever is a beneficiary under the specific policy will get the payout or balance upon the decedent’s death. This generally avoids the need for court intervention with respect to these assets if there is no conflict or misunderstanding between the heirs.
Succession Proceedings in Louisiana
If a decedent’s property and assets cannot be transferred using any of the above methods and alternatives, the next step is to move forward with judicial succession proceedings. In Louisiana, there are generally two different types of succession proceedings: succession without administration and succession with administration.
Succession Without Administration
Succession Without Administration is the most common type of succession proceeding in Louisiana. This is sometimes referred to as “Simple Putting in Possession.”
In this type of succession, formal administration of the estate is not necessary. Additionally, a succession representative (also known as an executor or personal representative) does not need to be appointed.
A succession without administration is possible if all of the following are true:
- The decedent died intestate;
- The decedent’s estate is “relatively free of debt”; and
- All heirs to the estate are competent and do not object to a succession proceeding without administration.
In a succession without administration, as long as the decedent’s heirs and interested parties sign the necessary pleadings and affidavits, only the attorney needs to appear in court during the proceedings.
Succession with Full Administration
If, however, an estate does not qualify for succession without administration, it will have to go through Succession with Full Administration. A succession with full administration is generally necessary when there are challenges to the validity of a will, when the identity of heirs or assets is unclear, or when another type of dispute exists.
In a succession with full administration, the court appoints a succession representative to administer the estate and resolve any disputes. For this reason, succession with full administration can be longer and more expensive than a succession without administration.
Succession in Louisiana can be a complex and time-consuming process, but having experienced lawyers in your corner to help guide you through the process can make it more manageable. Contact the Johns Law Firm today to see how we can help you.