What Are the Different Succession or Probate Options in Louisiana? 

What Are the Different Succession or Probate Options 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).  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.

Regular Louisiana Successions: Testate and Intestate, With or Without Administration 

As noted above, a testate succession is a succession that occurs when the deceased leaves a valid will, while an intestate succession is a succession that occurs when the decedent does not have a valid will or last testament.  But either a testate succession or an intestate succession may occur with or without an administration.

A succession without administration is the most common form of Louisiana succession.  A succession without administration is also known in Louisiana as a “Simple Putting in Possession Succession” since no appointment of an executor or administrator is required.

A testate succession without administration is used when all the heirs are competent or represented by a competent party, all the heirs accept the succession, and no creditors have requested an administration.  An intestate succession without administration can only occur if the succession is “relatively free of debt” and all parties in the succession agree to an intestate succession without administration.

A succession with administration, on the other hand, is a much more complicated succession option than a succession without administration.  In a succession with administration, the appropriate court will appoint a succession representative who is responsible for settling all outstanding disputes in the succession, which includes paying all outstanding debts of the succession.  A succession with administration will only occur if a succession without administration is not a legal option. 

The administration of an estate, in the case of a testate estate, is commenced by filing an Affidavit of Death and Heirship and a Petition of Probate.  If one exists, the original will is submitted to the court, along with the Petition of Probate, and proved.  At that point, the executor will be appointed.  A testamentary executor does not need to post a bond.  When no executor has been named in the testament, or if the one named is dead, and no alternate is named, a dative testamentary executor will be appointed.  A dative testamentary executor will have to post a bond.  

In the case of an intestate succession, any qualified person may petition the court for appointment as an administrator.  However, no person may be confirmed as testamentary executor, or appointed dative testamentary executor, provisional administrator, or administrator who is: 

1. Under eighteen years of age; 
2. Interdicted, or who, on contradictory hearing, is proved to be mentally incompetent; 
3. A convicted felon; 
4. A nonresident of the state who has not appointed a resident agent for the service of process in all actions and proceedings with respect to the succession, and caused such appointment to be filed in the succession proceeding; 
5. A corporation not authorized to perform the duties of the office in this state; or 
6. A person who, on contradictory hearing, is proved to be unfit for appointment because of bad moral character.

Furthermore, no person may be appointed dative testamentary executor, provisional administrator, or administrator who is not the surviving spouse, heir, legatee, legal representative of an heir or legatee, or a creditor of the deceased or a creditor of the estate of the deceased, or the nominee of the surviving spouse, heir, legatee, or legal representative of an heir or legatee of the deceased, or a co-owner of immovable property with the deceased.

No person shall be appointed as an administrator until at least ten days have elapsed since the decedent’s death.  Also, any interested party may file a petition to be notified of the filing of an application for the appointment of an administrator, and notice must be given to the person filing shall serve notice of the petition for appointment.

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:

1. Take an inventory of all assets of the estate and appraise their values;
2. Pay and resolve the debts of the estate;
3. If necessary, sell assets in order to pay estate debts;
4. File tax returns;
5. Distribute assets to heirs of the succession; and
6. Close the succession in a timely manner.

Again, these are the processes for regular successions with an administration, whether they be testate (where a will exists) or intestate (where no will exists).

What Are “Small Successions” In Louisiana? 

Besides the above-detailed types of successions in Louisiana – testate successions and intestate successions, both of which can occur with or without an administration – another option does exist for less complicated and less valuable successions.  This other type of succession, known as a “small succession,” is available for both testate and intestate successions where the value of assets is $125,000 or less, and no administration is required.  

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.  Also, Louisiana law holds that in judicial proceedings with regard to a small succession, the court costs shall be one-half the court costs in similar proceedings in larger successions and that the commission of the succession representative shall not be more than five percent of the gross assets of the succession.

The small succession of is available for a person domiciled in Louisiana who died intestate, or domiciled outside of Louisiana who died intestate or whose testament has been probated by court order of another state, and whose sole heirs are:

1. His descendants;
2. His ascendants;
3. His brothers or sisters, or descendants thereof;
4. His surviving spouse; or
5. His legatees under a testament probated by court order of another state

The required contents of a small succession affidavit for a person domiciled in Louisiana who died intestate are as follows:

1. The date of death of the deceased, and his domicile at the time thereof;
2. The fact that the deceased died intestate;
3. The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse’s address, domicile, and location of last residence; 
4. The names and last known addresses of the heirs of the deceased, their relationship the relationship to the deceased, and the statement that an heir not signing the affidavit (a) cannot be located after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of the affiants’ intent to execute an affidavit for small succession and did not object;
5. A description of the property left by the deceased, including whether the property is community or separate, and which in the case of immovable property must be sufficient to identify the property for purposes of transfer;
6. A showing of the value of each item of property, and the aggregate value of all such property, at the time of the death of the deceased;
7. A statement describing the respective interests in the property which each heir has inherited and whether a legal usufruct of the surviving spouse attaches to the property;
8. An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased; and
9. An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct, and complete to the best of their knowledge, information, and belief.

The affidavit must be duly sworn before an officer or person authorized to administer oaths in the place where the affidavit is executed.  It must be signed by at least two persons, including the surviving spouse, if any, and one or more major heirs of the deceased.  If there is no surviving spouse, the affidavit must be signed by two heirs, or if there is no surviving spouse and only one heir, by the one heir, plus a second person who has actual knowledge of the matters stated therein.  

The required contents of a small succession affidavit for a person domiciled in Louisiana who died intestate are as follows:

1. The date of death of the deceased, and his domicile at the time thereof;
2. The fact that the deceased died testate;
3. The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse’s address, domicile, and location of last residence, together with the names and last known addresses of the legal heirs of the deceased, and identifying those of the legal heirs who are also forced heirs of the deceased;
4. The names and last known addresses of the legatees of the deceased, and the statement that a legatee not signing the affidavit was given ten days notice by U.S. mail of the affiants’ intent to execute an affidavit for small succession and did not object;
5. A description of the property left by the deceased, including whether the property is community or separate, and which, in the case of immovable property, must be sufficient to identify the property for the purpose of transfer;
6. A showing of the value of each item of property subject to the jurisdiction of the courts of Louisiana, and the aggregate value of all such property, at the time of the death of the deceased;
7. A statement describing the respective interests in the property which each legatee has inherited and whether a legal usufruct of the surviving spouse attaches to the property;
8. An attachment consisting of certified copies of the testament and the probate order of another state;
9. An affirmation that, by signing the affidavit, the affiant, if a legatee, has accepted the legacy of the deceased; and
10. An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct, and complete.

In a small succession by affidavit, a multiple original thereof is sufficient authority of the heirs or legatees entitlement to the assets and may be delivered to any bank, financial institution, trust company, or by any person having such property in his possession. 

Also, if the affidavit procedure is used where there is immovable property, a multiple original of the affidavit, to which has been attached is a certified copy of the decedent’s death certificate, shall be recorded in the conveyance records in the office of the Clerk of Court in the parish where the immovable property described in the affidavit is situated, after at least ninety days have elapsed from the date of decedent’s death.

What Are “Independent Successions” in Louisiana?

Besides the above-detailed types of successions in Louisiana – testate successions and intestate successions, both of which can occur with or without an administration, and simple successions – another option does exist to simplify more complicated successions that require administration.  This other type of succession, known as an “independent succession,” is available for both testate and intestate successions where an administration is required.  The legal process for completing an independent succession is simpler than a regular succession which lacks the “independent” designation.  

When Are Independent Successions Allowed in Louisiana?

When the decedent’s last will and testament provides for independent administration of an estate, the court shall enter an appropriate order granting independent administration of the estate.  A statement in a last will and testament to the effect that the succession representative may act as an “independent administrator” or “independent executor” is sufficient to constitute authorization for independent administration of an estate.

When the decedent’s last will and testament designates an executor but does NOT provide for independent administration of an estate, an independent succession can proceed only if all of the legatees (or heirs) of the decedent agree to have an independent administration and collectively designate the person named in the testament to serve as independent executor.  In such a case, the court shall enter an order granting independent administration and appointing the person designated in the application as independent executor.

When the decedent’s last will and testament expressly provides that no independent administration of his estate may be allowed, then his estate, if administered, shall not be administered as an independent succession.  

When a decedent dies intestate, all of the intestate successors may agree on the advisability of having an independent administration and collectively designate a qualified person to serve as an independent administrator.  In such a case, the court shall enter an order granting independent administration and appointing the person designated in the application as independent administrator.

Except where the testament provides otherwise, an independent administrator shall not be required to provide security for the administration of the estate.  If an interested person, such as an heir, legatee, or creditor of the estate, requests security, then upon application by such party, and after a contradictory hearing, the court may order the independent administrator to furnish security as the court determines to be adequate.

How Are Independent Successions Different from Regular Non-Independent Successions in Louisiana?

An independent administrator shall have all the rights, powers, authorities, privileges, and duties of a regular succession representative, but without the necessity of delay for objection, or application to, or any action in or by, the court.  So, for example, under an independent administration, a lease does not require court approval; however, under a regular (non-independent) succession, any lease or sale of property first requires written approval from the court.

However, any person having a claim against the estate may enforce the payment or performance of the claim against an independent administrator in the same manner and to the same extent provided for the assertion of such rights in a regular (non-independent) succession.

An independent administrator is not required to file an interim accounting.  Nevertheless, any person interested in the estate may demand an annual accounting from the independent administrator.  Further, the court on the application of any interested person may require an independent administrator to furnish accountings at more frequent intervals.

Before the succession can be closed and the independent administrator discharged, there must be filed an inventory or sworn descriptive list of assets and liabilities of the estate verified by the independent administrator.  Also, unless the heirs and legatees waive a final accounting, the independent administrator shall file a final account with the court.  After homologation of that account, the court shall enter an order discharging the succession representative. 

The court on motion of any interested person, after a contradictory hearing, may remove an independent administrator for any of the reasons for which a succession representative may be removed from office.  In addition, the court on motion of any interested person, after a contradictory hearing, may for good cause order that the letters of independent administration be withdrawn and that the succession thereafter be administered under a regular (non-independent) succession.

Get Help from an Experienced Louisiana Succession and Probate Lawyer

Peter Diiorio of New Orleans Legal, LLC is an experienced Louisiana succession and probate attorney.  Mr. Diiorio frequently handles all types of complex succession matters and succession and probate disputes and litigation.  Mr. Diiorio handles all types of successions in Louisiana – including testate successions and intestate successions, both with or without an administration, simple successions, and independent successions.  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.