How Does Probate or Succession Work in Louisiana? The loss of a loved one can often have devastating consequences on a family. Especially following the death of a loved one, legal issues can become overwhelming to a family or individual. But dealing with the legalities of transferring the assets of a decedent, and resolving his or her debts, can only be put off for so long. Often, folks in Louisiana who are still deep in the grieving process have no choice but to come to learn about the legal process known as succession.
What is Succession or Probate in Louisiana?
Succession, also known as probate, in Louisiana is simply the legal process of transferring the assets of a deceased person to this person’s heirs, after the payment of all this deceased person’s debts. In other words, in Louisiana succession or probate is the legal process, overseen by a Louisiana court, of settling the debts of a deceased person and then legally distributing this decedent’s assets to his or her heirs or beneficiaries.
Another legal term used often regarding Louisiana succession or probate is the term “estate.” This term “estate” typically refers to the property that the decedent (the person who died) owned at the time of his or her death. Technically, under Louisiana law, the term “estate” also includes all the rights and obligations (such as outstanding debts) that a decedent leaves, both following his or her death, as well as the rights and obligations that arise after a decedent’s death.
What is the Purpose of Succession or Probate in Louisiana?
The purpose of succession or probate in Louisiana is to transfer the assets of a decedent to this person’s heirs, which can only happen after the payment of all this deceased person’s debts. But really, the purpose of succession or probate in Louisiana is to give clear and marketable title of the decedent’s assets to his or her heirs. In fact, at the conclusion of most Louisiana successions, the court will issue a legal document called a Judgment of Possession that legally transfers such title and ownership of the property.
So, for example, one of the most common reasons to open a succession is to legally transfer immovable property such as a house to an heir. But this heir does not just show up at the house and then thus become the house’s owner. Instead, the heir will need to go through the legal succession process in order to obtain clear title to this real estate – also known as the deed – so that it is easily proven who is the new property owner. Again, at the conclusion of most Louisiana successions, the court will issue a Judgment of Possession, which (if the succession involves real estate) will become the new deed to the property, and thus clear and marketable title. From there, the owner could keep the property, sell it, rent it out, or place a mortgage on it; however, none of these actions would be possible without a new legal deed to the property.
Another example of a common reason to open a succession is to gain access or legal ownership of bank account funds and investments. Typically, all banks will require a succession before they will transfer any such bank account funds or investment funds. In fact, banks will even require succession documents before even discussing the accounts with a potential heir, due to financial privacy laws. So again, an heir does not just show up at the bank and take ownership of such funds. Instead, the heir will need to go through the legal succession process in order to obtain clear title to, and legal ownership of, these assets.
What Are the Types of Successions or Probate that Exist in Louisiana?
Generally speaking, there exist two types of successions in Louisiana: testate successions and intestate successions. A testate succession is a succession that occurs when the deceased leaves a valid will (also called a last testament or a last will and testament). An intestate succession is a succession that occurs when the decedent does not have a valid will or last testament.
The key difference between testate successions and intestate successions is how the assets are distributed. In a testate succession, the decedent’s assets will be distributed according to the deceased’s wishes in his or her will. However, in an intestate succession (where there is no will to follow), Louisiana law for intestate successions will determine how a decedent’s assets will be distributed.
Additionally, whether testate or intestate, a succession with assets valuing $125,000 or less can be considered a “small succession.” The legal process for completing a small succession is much simpler than a regular succession and can typically be accomplished through the filing of a proper and valid “small succession” affidavit rather than a court filing.
Last, whether testate or intestate, a succession can be determined to be an “independent succession” if the decedent requested such in the will (for a testate succession) or if all the heirs agree to an “independent succession” (for an intestate succession). An “independent succession” is a simplified version of a regular succession wherein the succession representative does not need court permission to take certain actions such as selling or leasing property, or paying succession debts.
What is the Succession Timetable in Louisiana?
There are not really any timetables or time limits under Louisiana succession law in which a succession must be opened or closed. In other words, there is no deadline in Louisiana by which one must technically file probate for succession or probate. Of course, it’s usually smart to open a succession as soon as reasonably possible after the decedent’s death since the heirs cannot take possession of assets until the succession process occurs.
Nonetheless, there do exist some ancillary rules that do include time limitations.
For example, a will may not be admitted to probate unless it is filed within five years after the judicial opening of the deceased’s succession. So, for instance, a succession could be opened and closed, and within five years of the date it was opened, a will is found, the succession could be reopened and the will probated. But if the will is discovered five years or later after the succession is opened, it will be too late to file the will in the probate.
Additionally, in those rare cases where the decedent’s estate will be subject to federal estate taxation, the estate tax return is due nine months after the decedent’s date of death. Also, an estate income tax return must be filed for each year the estate is opened. The estate is free to elect a fiscal year to do this.
What is the General Process of Succession or Probate in Louisiana?
Generally speaking, the succession process begins with an individual applying in Louisiana state court to be named as succession representative. If there is a will, the will should be filed at that time as well. The district court should be located either where the decedent lived at the time of his or her death, or in any parish where the decedent owned immovable property such as real estate.
Once the court appoints the succession representative, the court will issue legal documents (often referred to as “letters”) that will allow this succession representative to act on behalf of the succession. From there, the succession representative is required to:
- Take an inventory of all assets of the estate and appraise their values;
- Pay and resolve the debts of the estate;
- If necessary, sell assets in order to pay estate debts;
- File tax returns;
- Distribute assets to heirs of the succession; and
- Close the succession in a timely manner.
Get Help from an Experienced Louisiana Succession and Probate Lawyer
It can be extremely difficult for a grieving family to have to turn its attention to legal matters such as succession or probate following the death of a loved one. Nonetheless, such matters cannot typically be avoided and should not be put off for long.
Peter Diiorio of New Orleans Legal, LLC is an attorney experienced in just how succession and probate work in Louisiana. Mr. Diiorio is happy to provide a free consultation to discuss your succession and probate matter. Please contact us now at (504) 897-5580 to schedule a free face-to-face, Zoom, or telephone consultation, and let us handle your probate matter for you.
