When is Succession or Probate Required in New Orleans? Often the grieving process following the loss of a loved one can overwhelm a family. The last thing a family wants to deal with following the loss of a loved one is the legal process. However, handling the legal matters of a deceased person should not be put off for long, and grieving families often have no choice but to come to learn successions in Louisiana. Often the first and most obvious question is: is a succession even required for this grieving family? This is an important question because succession or probate is not always necessary in Louisiana.
When is Succession or Probate Necessary in Louisiana?
The succession or probate process is required in Louisiana in most, but not all, circumstances. There are times when the heirs may avoid succession or probate, though it is the exception, not the rule. The most common exception is when the succession or probate process is required in Louisiana is when the value of the estate is less than $125,000.00; often, in that case, the succession or probate can be avoided by simply filing an affidavit in the appropriate office.
But basically, succession or probate is necessary when there is no other available mechanism by which to transfer the assets of the decedent to his or her heirs. These heirs may assume they have ownership or possession of the decedent’s assets, but succession or probate in these circumstances is required to legally and formally transfer the ownership of these assets to the heirs. Also, the succession or probate will “re-title” these assets, resulting in, for example, a new deed for immovable property.
So unless all of the assets can be legally transferred by methods other than succession, the succession or probate process is required in Louisiana. This requirement stands regardless of whether the succession is testate or intestate. 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.
It is important to know that a will (also known as a last testament) must be probated in Louisiana to establish that the will is legal and valid. A Louisiana court (typically in the parish where the decedent last resided or in the parish where the decedent owned immovable property) must determine the legal validity of the will to ensure that the decedent’s wishes are followed.
It is also important to understand that if an individual who lives and is domiciled in another state, but owns an immovable property (or real estate) in Louisiana, passes away, then a succession will need to be opened in the state of Louisiana so that the title of that property can be transferred to that individual’s heirs.
Regardless, most of a decedent’s assets will require a succession or probate. In fact, after a person’s death, generally no one will be able to legally access the decedent’s assets until a court appoints a succession representative. Once the court appoints a succession representative, then this individual will gain the legal authority to access and manage the decedent’s assets, and administer the decedent’s succession. This administration requires payments of the estate debts, after which the court will transfer the decedent’s remaining estate to the decedent’s heirs.
When is Succession or Probate NOT Necessary in Louisiana?
Succession or probate is not always necessary in Louisiana. First, succession is not necessary for estates in which the property is worth less than $125,000 and the distribution is uncontested. Other methods to transfer assets to the heirs without succession or probate include the following:
- Life insurance policies;
- Certain retirement plans;
- 401(k)s, 403(b)s, 457 plans,
- Payable on death accounts;
- Payable on death trusts; and
- Revocable living trusts.
These above-listed examples consist of non-probate assets that automatically pass to the named beneficiary, outside of succession, without the need of the court. These assets that are beneficiary-designated do not need to go through the probate process and are not controlled by a will or the laws of intestate successions.
Additionally, assets titled with joint tenancy with a right of survivorship automatically transfer the property to the surviving owner in some other states outside of Louisiana. However, “joint tenancy with rights of survivorship” is not recognized in Louisiana. It is nonetheless used to bypass probate in some other states.
How Do You Avoid Succession or Probate in Louisiana?
An individual can avoid succession or probate by utilizing any of the above eight listed examples consisting of non-probate assets that automatically pass to the named beneficiary, outside of succession, without the need of the court.
These beneficiary-designated accounts will be transferred directly to the named beneficiaries on the account. In these situations, the beneficiary merely needs to submit a completed beneficiary claim form and a certified death certificate in order to have these assets placed into the beneficiary’s name. Additionally, for POD (payable on death) or TOD (transfer on death) accounts, the bank or credit union can simply transfer the accounts once the beneficiary produces proper proof, including a certified death certificate.
For large or complicated matters, the best way to avoid probate in Louisiana is to place all assets into a revocable living trust (also known as a living trust). In a revocable living trust, the assets automatically transfer to the named trust beneficiaries, outside of succession, without the need of the court. Plus, these assets can be transferred according to the explicit and specific terms of the revocable living trust.
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 and succession and probate disputes and litigation. 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.