What Happens to Inheritance When There is No Will? There are two main 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.
So Who Inherits in Louisiana When There is No Will?
In Louisiana succession and probate law, certain “classes” of individuals and family members will inherit, when there is no will, before others. Specifically, the order of inheritance classes is as follows:
- Descendants;
- Parents and siblings (and the descendants of any deceased siblings);
- Surviving spouse not judicially separated;
- More remote ascendants; and
- More remote collaterals.
The individual or relative in the most favored class takes to the exclusion of other classes, meaning that the other classes will not inherit if there is a more favored class. The nearest relation in a class, determined by counting degrees, takes to the exclusion of more distant relatives in that class. Also, a degree is a generation, and the closest degree will inherit. Relatives of the same degree share equally to the exclusion of the more remote relatives. In the direct line, there are as many degrees as there are generations. In the collateral line, count up to the nearest common ancestor, then to the decedent.
Inheriting Class Number One: Descendants
Descendants inherit the separate property of their ascendants. They inherit in equal portions and by head if they are in the same degree. Descendants inherit by roots if all or some of them succeed by representation. Children, or their representatives, inherit to the exclusion of other heirs, and adopted children are treated as biological children. Children born out of wedlock are considered children if formally acknowledged or if filiation is timely.
Inheriting Class Number Two: Parents and Siblings
Parents have a joint and successive usufruct, and the siblings are the naked owners of inherited property. If one parent dies, then the entire usufruct goes to the surviving parent and the siblings, or their descendants, continue to have only a naked ownership interest. An ascendant inherits to the exclusion of all others when they donate an immovable property to a descendant, and the descendant dies without posterity and has not disposed of the immovable property.
If the ascendant inherits the immovable property, he inherits it subject to all the mortgages, which the donee may have imposed on it during his lifetime. The ascendant who exercises this right is bound to contribute to the payment of the debts of the succession of the descendant in proportion to the value of the immovable previously donated.
If there are no surviving parents, then the entire estate goes to the siblings of the decedent to the exclusion of all others. Representation takes place in the sibling line. If there are siblings of different unions, the property is divided equally between the paternal and maternal lines. Those who share both parents with the deceased sibling take in both lines. Half-blood siblings take only in their respective lines.
If there are no siblings, then the parents inherit the entire estate in full ownership.
Inheriting Class Number Three: Surviving Spouse
If the decedent has no surviving descendants, parents, or siblings, then the surviving spouse, not judicially separated, inherits to the exclusion of other ascendants and other collaterals.
Inheriting Class Number Four: More Remote Ascendants
If the deceased has no surviving descendants, siblings, parents or surviving spouse, and a grandparent or grandparents alive, then they divide the estate. If there is one ascendant who is nearer in degree than the others, then he inherits everything. If ascendants in the same degree are surviving, they divide the estate by root, with one-half going to the maternal side and one half going to the paternal side. There is no representation in the ascending line.
Inheriting Class Number Five: More Remote Collaterals
If the deceased has no surviving descendants, parents, siblings, or ascendants, then the nearest collaterals will take, by counting to the nearest degree. There is no representation herein, only equal division by heads.
If there are no heirs, then the estate escheats to the state.
Who Inherits Community Property in Louisiana When There is No Will?
As to community property, the order of inheritance is as follows:
- Descendants;
- Surviving Spouse;
- Parents and Siblings;
- Other Ascendants; and
- Other Collaterals.
If there is a surviving spouse, he or she has full ownership of his or her one-half share of all community, not by inheritance, but as owner.
Community Property Inheriting Class Number One: Descendants
If there are children or other descendants, the decedent’s one-half interest in community property goes to them, subject to a usufruct of the surviving spouse. If a child renounces his parent’s half of the community, the child’s descendants inherit, rather than the deceased parent’s spouse.
The surviving spouse is generally not required to give security; however, security is not dispensed with when the naked owner is not a child of the surviving spouse. This usufruct continues until the earlier of the surviving spouse’s death or remarriage.
Adopted children are entitled to full inheritance rights as if they were born of the decedent’s marriage. The adopted person may inherit not only from his adoptive parents but also from his natural parents and relatives.
Children born outside marriage inherit to the same extent as do children born of marriage if: (1) the child is formally acknowledged; (2) if the parents subsequently marry and acknowledge; (3) if the child files a paternity action; or (4) if the father timely files an avowal action.
Community Property Inheriting Class Number Two: The Surviving Spouse
If the decedent leaves no descendants, then the decedent’s one-half interest in community property goes to the surviving spouse.
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 complex succession matters, including when there is no will available. 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.
