Louisiana Successions and Legal Services

Our legal services team specializes in successions, property settlements, and other legal matters that are unique to Buyers and Sellers in Louisiana.

Through our 40 years in business with 50,000 successful closings, we count ourselves as some of the most knowledgeable experts on legal issues that affect real estate title transfers in the state of Louisiana and particularly the greater New Orleans area.

Southern Title experts can uncover and resolve various legal defects that are commonly missed by other firms or simply too difficult for them to resolve. For example, one of the most frequently overlooked legal complications that impede transferring title comes from a person who passes away and owns a property, however, it is unclear from public records who the person’s heirs are or how to locate them.

We understand not only how to perform the curative legal work for these situations, but also how to work with family members in difficult situations so that everyone involved in the transaction is treated with dignity and respect.

Alternatively, Sign up for one of our Louisiana Real Estate Commission licensed continuing education classes by viewing our Classes page and signing up for a Successions Class.

Louisiana Successions and legal services

Additional Information

What is Usufruct?

In order to understand Louisiana inheritance law, you need to be familiar with the legal term USUFRUCT. The word is easier to understand if you think of two common English words, “use” and “fruits”.
Often in our state, one person will inherit the right to use property while another will inherit the right to sell or mortgage property. A house is a perfect example.
One person may have the right to live in the house. Another person may have the right to sell the house. This other right is referred to as “naked ownership.” While the naked owner can sell the house, it would have no effect on the usufruct.
When the person who has the usufruct dies, the person who has the naked ownership automatically gets the usufruct, or in other words becomes the “full owner.”

What is succession law?

A succession is a process of settling a deceased person’s estate and distributing the property after debts are paid. This process is called probate in other states.Succession is also used to refer to the estate a person leaves behind at death.
A succession can be either intestate (without a will) or testate (with a will).

Why are successions relevant to real estate professionals?

Because real property is often involved in individual successions, real estate professionals should be aware of its importance and use. For example, many real estate agents are unaware that when a property is under a succession administration, the purchase agreement must include language that specifies “succession as executor/ administrator of John Doe, subject to court approval.”

What is the difference between intestate and testate?

Intestate Succession occurs when there is no will or when the will is invalid in whole or in part, or the will does not dispose of all the decedent’s property. It’s opposite, testate indicates that the deceased had a valid will prior to death.
In Louisiana, the law provides for the disposition of the assets in the absence of a will.
Intestate successors are commonly called “heirs” while testate successors are commonly called “legates”.
Additionally, a court-appointed administrator the person in charge of the estate when someone dies without a will, while an executor is specifically named in the will to take charge of the estate.

What is inheritance?

Inheritance basically refers to the transfer of property and wealth from a person who has died to a descendant who is still living.
If a person dies without a will having left offspring, all of his succession, whether community or separate property, passes to the offspring. If one of his children has predeceased the decedent leaving children of their own, those grandchildren of the decedent inherit by representation, meaning that they inherit and will split the share that their parent would have inherited.
It is often assumed that the surviving spouse inherits a 50% interest from the decedent.This belief is incorrect because the surviving spouse does not inherit anything from the decedent if there are children and no will.
If there are no children, then the surviving spouse will inherit the decedent’s portion of community property. A will could create any number of new rules of who will or will not inherit.

Does all property have to go through a succession?

Some types of property are not considered part of your succession in Louisiana. Normally, a property that is paid directly to a named payee by a third party is not subject to succession laws.
For example, any retirement asset, like an IRA or 401(k), would not have to go through succession and would not be subject to inheritance tax. It is important to make sure your beneficiary designation/s are up to date.

What are the requirements for a succession?

1. All successions must be opened in the parish of the deceased’s domicile, which combines both an intent to remain in a place + physical presence.
2. If a person was not domiciled in Louisiana the succession may be open in a parish where the deceased had immovable property.
3. If a person was not domiciled in Louisiana and owned no immovable property, the succession may be open in any parish where the deceased movable property is location.

What information is needed for a succession?

Generally speaking, the attorney handling the succession will need to know the following things:
About the Decedent:

  • The decedent’s name, social security number, address at the time of death, date of death, marital status at the time of death and whether he died testate or intestate
  • If the decedent died testate, the attorney will need the original testament
  • If the decedent died testate, the attorney will need to know if there are any forced heirs

About the Property:

  • A list of all the assets the decedent had when he died, a determination of whether those assets were community property or separate property of the decedent, and the value those assets had on the day the decedent died, a list of the debts the decedent owed when he died, a list of the funeral and burial expenses.
  • For any real estate, the attorney will need a formal legal description of the property, which can be found in the act by which the decedent acquired ownership of the property. If you do not have that document, it can be retrieved from the property records of the parish where the property is located. If the property is covered by a mortgage, that mortgage must also be listed.

About the Heirs:

  • A list of all the heirs or legatees, their addresses, dates of birth and social security numbers
  •  If any heir or legatee was a minor, the attorney will need to know the name, address and social security number of the person who has custody of that minor
What should I do right away if someone close to me has died?

The first thing you should do when someone dies is to preserve the information that will be needed to conclude the succession. This information consists of information about the decedent, such as the date he died, where he lived when he died, whether he executed a valid testament before he died, who are his heirs or legatees and what property and liabilities did he leave behind.
A good practice is to gather together in one place all of the bills and bank statements that are received in the mail over the next 30 days or longer. If the decedent had any stock, bonds or other securities, it would be useful to retain a listing, such as a newspaper listing, of the quotes for the day he died.
It is also important to retain all of the bills for the funeral and burial. These bills are considered “administrative expenses” of the succession and are treated differently from all other bills that the decedent had at the time he died. If the decedent had pre-paid his funeral expenses, you should retain those records.

What is a testate succession?

Procedure: Who may request
Any person who has an interest in the will may request probate.
Procedure: Petition and affidavit
File petition praying that testament is probated and executed; attached thereto is the affidavit of death, domicile and heirship and will is present.
Procedure: Proving by affidavit
Wills in a valid form in Louisiana may be proved by an affidavit (olographic or notarial).
1. Any person who has an interest in the succession may petition the court for probate and execution of the will.
2. Petition the court for probate and execution of the will.
3. The petitioner must submit proof of death (affidavit of two people having knowledge of the facts sworn to).
4. Wills are generally probated without objection or opposition.

How is a succession administered?

1. Succession must be full administered unless the parties at interest can avail themselves of special exceptions to this requirement which would place the heirs/legatees in possession without administration
2. Most successions avail themselves of the exception to the rule and do not follow the complete administration procedure.
3. With any succession under administration, the estate sells the property through an administrator. The title does not vest in any of the heirs. This is a useful alternative when you have heirs that have judgments against them, heirs who are minors or heirs you cannot find.
The typical administration of a testate succession is through the Process Verbal: the Proces verbal prepared, or if will be provided by affidavit, then the judge signs the order.
The Process verbal is a public inventory of succession property taken by a court-appointed notary in the presence of two witnesses. The will is then ordered and recorded, filed and executed.

What is intestate succession under administration?

The succession representative is referred to as the administrator.
Any interested person may petition the court to be notified about application for appointment of administrator.
Court shall appoint a qualified applicant having the highest priority.

What is testate succession under administration?

Succession representative referred to as executor. The deceased in the will appoints the executor. The court has the power to remove a succession representative. The timing of the executor’s appointment, letters issued testamentary and disqualification is issued as well.

What is an example of a small succession under administration?

1. Gross Estate of the decedent must be under $75,000.
2. The court will appoint Administrator. NOTE – the first one who asks usually gets the appointment and there can be more than one administrator appointed as is often done when the deceased has children from different marriages.
3. Newspaper ads are run advertising the sale’s price and the legal description.
4. Ad runs one time and you must wait ten (10) days after the ad is run to have the Judge sign the Order authorizing the sale.
5. If the property is in Orleans Parish, ad must run in Louisiana Weekly and Times-Picayune that slows down the process

What is an example of asuccession under administration?

1. The net worth of the decedent is over $75,000.
2. The court will appoint Administrator. NOTE – the first one who asks usually gets the appointment and there can be more than one administrator appointed as is often done when the deceased has children from different marriages.
3. Newspaper ads are run advertising the sale’s price and the legal description.
4. Run two (2) ads 21 days apart then wait seven (7) days after the ad is run to have the Judge sign the Order authorizing the sale.
5. NOTE– is selling price less than what is advertised, all ads must be rerun

What is independent administration?

Independent Administration is another possible way to open the succession of a decedent. Independent administration can be provided for in a will or all heirs must concur with the appointment of an independent administrator and dispense with the posting of security and/or bond.
The beauty of independent administration is that once you have obtained the Letters of Independent Administration, you do not have to run ads as required by law when a succession is opened under regular administration.

What are the duties and powers of the succession representative?
  • Fiduciary: Collect, preserve, manage
  • Inventory: Files inventory or descriptive list
  • Compensation: 2.5% of the value of the succession
  • Power over property during administration
  • Tableau of distribution
  • List of charges that executor proposes to pay
  • Final account
What determines inheritance when there is no will?

Inheritance depends on a number of factors, including if the property in question was held by the deceased as a community or separate property and also on the relationship of survivors to the deceased.
Heirs are divided into five classes and, as to separate property, they inherit in the following order of priority:
1. Descendants
2. Parents then siblings and then descendants of siblings
3. Surviving spouse
4. More remote ascendants
5. More remote collaterals

Are there any caveats about inheritance in intestacy?

Adopted children are entitled to full rights as legitimate children, and can inherit from natural parents and relatives.
Illegitimate children are entitled to inherit to the same extent as legitimate children only if they are formally acknowledged or if they timely establish filiation.

What is unique about separate property?

In general, without a will, a spouse inherits none of the other spouse’s separate property. Instead, it goes to the children or blood relatives of the deceased.

What is unique about community property?

Community property is usually property accumulated by the couple while they were married (unless there was a marriage contract or inherited property), while separate property includes:
1. Property owned before marriage
2. Inherited property
3. Property was given to one of the spouses

What is forced heirship?

Parents in Louisiana are obligated to leave a minimum of 25% of their wealth to their offspring if they have only one child and 50% if they have 2 or more children.
However, if the offspring has attained the age of 24 years and is mentally and physically capable of taking care of themselves and administering their estate at the time of the decedent’s death the parents can eliminate them from inheriting.
Illegitimate children inherit to the same extent as legitimate children only if they are formally acknowledged or if they timely establish filiation. (One year from the death of the parent or nineteen years from the birth of the child, whichever is earliest.)
The successor is liable for debts of the estate, but liability is limited to the value of the property the heir actually receives, valued at the time of receipt. The successor may accept or reject succession, cannot take the good and leave the bad.
1. Whether the deceased dies with or without a will, a portion of the deceased’s estate is reserved for forced heirs
2. Part of the estate called “the forced portion” is reserved for certain heirs
2.1. Forced portion is half of the deceased’s estate if the deceased had two or more forced heirs
2.2. Forced portion is one-fourth of the deceased’s estate if the deceased had one forced heir
2.3. The part of the “forced portion” attributable to each forced heir is referred to as “legitime”
Legitime can be satisfied only by full ownership or by naked ownership burdened with the usufruct of the surviving spouse or by putting the legitime in trust

Who are Forced Heirs?

1. First degree descendants (children) who are 23 years of age or younger
2. Disabled first degree descendants
2.1. Disability may be mental or physical
2.2. For forced heirship purposes “disability is defined as the child is either permanently incapable of taking care of his affairs or permanently incapable of taking care of his person”
3. Only by representation or grandchildren forced heirs
3.1. A grandchild may represent a predeceased parent if the parent would not have attained the age of 24 at the time of the deceased’s death
3.2. A grandchild may represent a predeceased parent regardless of the parents age if the grandchild is disabled

What options does a successor have?

When a person dies, by intestacy or testacy, the successor has three options:
1. Accept the succession
2. Renounce the succession

How does full acceptance occur?

1. All successors are presumed to accept.
2. A person cannot accept until the succession is opened, i.e., after the person dies.
3. Acceptance can be formal or informal
3.1. Formal express and in writing or a judicial proceeding.
3.2. Informal is an act that implies intent to accept.
3.3. For Instance an act of ownership such the alienation or lease of inherited share.
4. Effect of Acceptance
4.1. The successor is liable for the debts of the estate but liability is limited to the value of the property the heir actually receives.

How does partial acceptance occur?

1. An heir can accept an inheritance but renounce the rights that arise from someone else’s renunciation.
2. Conversely, the heir can renounce the inheritance but except the rights that arise from someone else’s renunciation.

How does renunciation occur?

1. Renunciation must be express and in writing
2. Effect on the estate
a. Intestate
1. The renounced share goes to those who would have inherited if the renouncing heir had predeceased the deceased
b. Testate
1. According to the testament and if no “governing provision” as if the renouncing legatee had predeceased the testator.
3. Effect on creditors
a. Can prohibit renunciation at least to the extent of the renouncing heir’s debt.

What is an unworthy heir?

1. Unworthiness
a. When an heir is declared unworthy, he is deprived of the right to inherit, including the right to claim as a forced heir, and cannot serve in any fiduciary capacity in the succession
2. Grounds
a. Conviction of a crime involving the intentional killing or attempted killing of the deceased or, if not convicted, judicially determined to have participated in the intentional, unjustified killing or attempted killing of the deceased
3. Defense
a. The rights devolve as if the unworthy heir had predeceased the deceased
4. Effect of reconciliation
a. Reconciliation or forgiveness will cure the grounds of unworthiness
5. Who may bring the action
a. Unworthiness must be pronounced by the court
b. The action may be brought only by a person who would succeed in place of or in concurrence with the unworthy successor or by one who claims through such a person

What is inheritance by testacy (will) succession?

1. In order to have a testate succession, a valid will must be executed by the deceased, referred to as the testator of the will
a. Importance of Formalities
1. Failure to follow the formalities invalidates the testament
b. Testamentary Intent
1. In addition to the proper form, the testamentary intent is needed. Did the deceased intend to convey property at death in the manner indicated in the will?

What are donations and wills?

1. Two kinds of donations:
a. Donation Inter Vivos – donor divests himself irrevocably in favor of a donee who accepts.
b. Donation Mortis causa – action that takes effect on death and is revocable until death.
2. Two types of wills:
a. Olographic will – testator must write the will by hand and date (example, January 2, 2009) and sign it.
b. Notarial Testament – may be written, printed and typed; must be executed before a notary and two competent witnesses.

How does one revoke or modify a will / testament?

1. Revocation
a. Revocation is permissible at any time
b. An entire will/testament may be revoked by physically destroying the testament or directing it to be destroyed or stating in one of the forms for testaments or by authentic act

How does one revoke a provision of a will?

1. Express revocation
2. So declaring in one of the forms prescribed for a will/testament
3. Subsequently disposing of property in another will/testament provision
4. Subsequently making an Inter-Vivos donation of the one thing and not reacquiring it
5. Making a signed writing on the testament
6. Divorce after the execution of the testament revokes a legacy to the spouse or an appointment of the spouse as executor unless the testator provides otherwise

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