Louisiana succession law is complicated and has a lot of moving parts that span multiple areas of law. The law here is quite different from other states and our body of law determines what happens when someone dies. You may be familiar with aspects of succession law from other states, but that doesn’t mean you will know what to do when a loved one passes away in Louisiana.
This article will attempt to explain the basics of Louisiana succession law as well as point you in the right direction for more complicated matters. You may be wondering if you need to hire a Louisiana succession attorney to help you with the process or if you should attempt to file a succession in Louisiana without a lawyer.
While a blog should never be a substitution for a lawyer consultation, this article will at least help you narrow down your issues should you hire an attorney.
Let’s start with the easy stuff…
What is a Louisiana Succession?
A Louisiana succession is the transmission of the estate of the deceased to his/her successors. It’s basically the way an individual receives ownership of things or immovable property when someone dies. There are really only 3 ways someone acquires ownership of property in Louisiana: by succession, operation of law or an obligation.
What is a succession in Louisiana? A succession is how property is transferred upon death in Louisiana.
2 Types of Louisiana Successions: Testate and Intestate
While these terms may sound intimidating, they have simple meanings. Remember, one of the ways property is transferred to an heir or other individual is by succession and there are two types of successions in Louisiana.
Testate: a testate succession is one where the deceased had a will before they died. There are many types of will and formats they must follow to be considered “valid.”
Intestate: an intestate succession is one where the deceased did not have a will before they died or their will was found to be inalid. Louisiana has a large body of law and cases that tells us what happens when someone dies “intestate” or without a will. The property of the deceased will be given to his/her descendants, ascendants and collaterals based on our body of law.
To sum it up: Testate successions are when the person executed a valid will before death and intestate successions are when there was no will or the will was found to be invalid.
*This should let you know that it’s important to have a will and to consider having it drafted by a Louisiana succession attorney to ensure your wishes are kept after you die. Remember, you can’t come back to tell the court what you REALLY wanted to happen to your property.
Testate successions sound easy to file, but let’s be honest, there’s still a ton of information and paperwork you will have to gather. You will have to do a fair amount of research to find the property of the deceased, locate all heirs (even those who left the state decades ago), determine the proper parish in which to file the succession and other issues.
Yes, there are multiple parishes within which you may need to file the succession. You will also need to find property located in other states. More on that later.
Notice one thing that isn’t included in the list? Hopefully your loved one had life insurance, but that’s not an instrument that goes into the succession because there are different laws that govern those policies.
What Happens if you Die Without a Will in Louisiana?
If you don’t have a will when you die in Louisiana, the State has a body of law that determines what happens to your assets. Remember, an intestate succession is when there is no will at the time of death and your assets will go to your relatives. Who gets what is largely dependent upon whether you have children or parents when you die.
Here’s a handy “Intestate Succession” chart to help you better understand who gets what:
|If you leave behind:||This person inherits this:|
|Children, but no spouse||Your children inherit|
|Spouse, but don’t have children, parents or siblings living||Your spouse inherits|
|No spouse, no children, no siblings, but living parent(s)||Parents inherit|
|No children, no spouse, no parents, but siblings living||Siblings inherit|
|Living spouse plus children||Spouse can “use” your share of the community property. “Usufruct”Your children inherit your portion of the community property. However, it is subject to your surviving spouse’s right to use it as the usufruct. Children inherit your separate property.|
|Living spouse plus parents||Spouse gets your portion of community propertyParents inherit your separate property|
What Does the Surviving Spouse Receive?
If you die without a will and are married, the amount your surviving spouse will receive depends on the manner in which you owned the property together. We’re talking about separate and community property.
First, community property is property purchased during the marriage, while separate property is property you owned before the marriage. That’s a simplification, but gets the idea across.
Now that you understand the difference between the two: if you die without descendants, brothers and sisters or parents – your surviving spouse inherits all of your property including community and separate property. However, if you leave behind children and a surviving spouse; your spouse will have to share property ownership with them. Your spouse will get “usufruct” over your half of the community property and your children will inherit your separate property.
If you want to protect your spouse from being forced to own property with your descendants, you need to get a Last Will and Testament in place. It can save headaches down the road.
Sounds complicated so far, doesn’t it? Now to a question you’ve been wanting to ask:
How to do a Succession in Louisiana without a Lawyer
Lawyer fees are expensive and there seems to be no slowing down. However, Louisiana succession attorneys are expensive for a reason; Louisiana succession law is complex and the attorney has to have experience in multiple aspects of law.
Can any Louisiana licensed attorney file a succession for a client? Absolutely! However, you may want to speak with an attorney that has experience not only filing successions, but that can answer your questions and explain your options. Most attorneys that handle Louisiana successions have built a law practice around that aspect of law and don’t simply dabble in them.
If you feel you must try to do a succession in Louisiana without the help of an attorney; there are a few questions you need to ask yourself. If you’re planning a “Do it yourself succession in Louisiana,” you may want to continue reading.
First, do you have the time required to complete the paperwork? It could take months to gather the required documents and locate the property. You may not even find everything you need and may file prematurely and be forced to amend your petition.
Next, do you know what types of assets go into a succession and which ones don’t? There are many types of assets that can simply be transferred to heirs without filing a succession. Life insurance is just one example, but there are others.
Are you able to locate all property of the deceased? Most heirs don’t have a clue as to what their loved ones owned, especially if years have passed since they died. You will be responsible for locating movable and immovable property. If the property is in multiple parishes, do you know which parish you are to file your petitions in?
These are just a few questions you must ask yourself when deciding if you should attempt to file a succession in Louisiana without a lawyer.
How Much Does it Cost to Open Succession in Louisiana?
There are various costs associated with opening a succession in Louisiana. They’re normally broken into 2 categories: lawyer fees and court costs.
You can expect court costs and filing fees for a succession to range from $250 to $400 depending on which parish you file in. The filing fee does not go to your attorney and is just to file your paperwork with the court. This is usually the only cost associated with the actual process of opening the succession. If you Google “How much does it cost to do a succession in Louisiana,” you’re likely to not find your answer because most attorneys don’t disclose their fees on their website.
Louisiana Succession Attorney Fees
Louisiana succession attorney fees can vary widely depending on the complexity of the succession. Attorney fees take into account the amount of property that is to be included in the succession, number of heirs, location of property and other factors. You may have to pay more if there’s a chance the succession may be contested by a third party or an heir that has been removed by the will.
Here’s a few questions you’re likely to be asked when getting a quote from a Louisiana succession attorney:
- Was there a will?
- How large is the estate?
- Where are assets located? Are any out of state?
- Do you have any family members that may try to attack the will?
- Where are heirs located?
- Is there a surviving spouse?
- Are assets community property or separate property?
There are numerous questions that your attorney may ask before providing a quote, but these will get you started. Don’t get discouraged when calling around town for a quote; most Louisiana succession attorneys won’t provide a quote over the phone because they need more information before quoting a price. They don’t want to be held to a low quote if they don’t have all of the information.
Hourly Rate Versus Flat Rate for Successions
Attorneys usually bill for succession work 2 ways: an hourly rate that’s set at the beginning or a flat rate fee. The amount you end up paying will largely depend on which payment setup is chosen. There are pros and cons to each billing structure which we will discuss next.
Hourly rates can vary by attorney and usually depend on experience handling successions. You can expect to pay around $200 to $300 per hour. Attorneys charge for every meeting, phone call, email and text and will bill you in increments. This means you can expect to pay every single time you have a question about your case. You will quickly learn that it’s best to wait until you have a lot of questions to ask at the same time to save money. Hourly rates for successions are going out of favor these days because the client ends up either paying more or just not asking questions they need answered.
Flat rate fees are increasing in popularity with Louisiana succession law. This fee structure allows you to pay a one-time fee up-front for everything. Think of an all-inclusive vacation where you pay in advance and the drinks are free. You can call, email or visit with your attorney as many times as you need and won’t have to pay for every single interaction. Flat rate fees are becoming much more common in Louisiana and usually benefit the client.
Flat rate fees for Louisiana successions usually begin at $1,500 for a regular succession and go up from there.
Where do you File a Louisiana Succession?
As you know, Louisiana is broken up into parishes and each parish has their own set of rules. If you’re out of state and trying to file a Louisiana succession, it can be hard to figure out in which parish you need to file your petitions.
Thankfully, the Louisiana Code of Civil Procedure gives us the answer:
A Louisiana succession shall be opened in the district court in the parish where the deceased was domiciled when he/she died. Domiciled basically means where the person “lived.”
If the deceased did NOT live in Louisiana when he/she died, the succession can be opened in the district court of any parish where:
- The deceased owned immovable property; or
- The deceased owned movable property, if he/she did not own immovable property in the state when he/she died.
A person’s domicile is the place of his/her habitual residence or where that individual intended to make their home. If you own multiple homes as many people do, your domicile is the one place that is your main residence as you can only have one domicile in Louisiana.
Here’s an example of how to determine domicile: Dan owns 3 homes; one in Lafayette Parish, one in Rapides Parish and one in East Baton Rouge Parish. He spends most of his time in Lafayette Parish and holds himself out as living there. He receives mail at that residence and pays taxes there. Dan dies in Lafayette and Dan’s heirs would need to file in that parish.
Out of State example: Dan lived in Texas when he died, but owned immovable property in Louisiana. His succession must be filed in the parish where his immovable property is located.
Use these questions to determine which parish you must file the succession:
- Did the individual live in Louisiana when they died?
- Which parish were they domiciled?
- If they lived out of state, did they have immovable property in Louisiana?
- If they lived out of state and did not own immovable property in Louisiana, did they own any movable property in the State of Louisiana?
The reason this can be complex is because it’s quite common for residents of Louisiana to own multiple properties in different parishes.
An experienced Louisiana succession attorney can help you figure out where to file. Keep in mind that you will have to file again if you file the succession in the wrong parish.
If you need to hire an attorney, but can’t afford their fees; many attorneys will work with you on their legal fees and some offer payment plans. Attorneys are also business owners and you are sometimes able to negotiate a lower rate for your Louisiana succession. Here’s an article that goes more in-depth with how to negotiate lower legal fees in Louisiana.
How Long Do You Have to Probate a Will in Louisiana?
Probating a will in Louisiana doesn’t work like other areas of law. There is no time limit such as 1 year or 3 years. Wills are often lost or misplaced and have the tendency to show up later. A will can be probated anytime, even if it’s lost and then recovered. Technically, an individual owns a property when the other person dies. There may be an issue as to possession, which is different from ownership. A Louisiana succession attorney can file to have the succession proceedings start once the will is located and presented.
How Long Do Heirs Have to File a Succession in Louisiana?
This is an honest question that gets asked often and for good reason. No one wants to think about a succession while dealing with the death of a loved one. You may need more time to mourn before you begin the process of going through paperwork and hiring attorneys.
You have time. A Louisiana succession does not need to be filed immediately following the death of the individual. However, you don’t want to wait too long as it may get harder to locate the required documents. Things get lost once heirs begin dividing property and you can easily misplace paperwork. It’s highly recommended that you at least begin meeting with potential Louisiana succession attorneys in your area and let them ease your stress. That’s what they get paid to do. The problem with waiting too long to file a succession is that property can get damaged, money gets spent and it can go to the wrong people. It’s substantially more difficult to reclaim money from a family member that’s already been spent.
How Long Does a Succession Take in Louisiana?
You can call every Louisiana succession attorney in town and they will all likely tell you that the time frame for completing a succession solely depends on the complexity of the succession. Some successions simply require a petition, verification, detailed descriptive list and a judgment, while others require substantially more work.
Let’s say for example that you are the executor of the estate and have a binder with everything your attorney needs to get started. The petition and required affidavits can be completed by your attorney in a matter of days depending on their schedule. The hard part is when you’re missing information and have to search for it. Also, there’s been numerous cases where a long-lost sibling returns wanting their share. Your attorney may have to make adjustments to the petitions as it can be an ever-evolving document while new information is brought to light. Then you still have to wait for the judge to sign off on the succession.
You also have the risk of litigation when dealing with successions in Louisiana. A family member who has been cut out of the will may try to invalidate it so they can inherit. There are too many variations to give a proper time frame for completion, but it’s safe to say a succession in Louisiana can take from a couple of weeks to months and in extreme cases, years.
Next, let’s discuss how to handle a small succession in Louisiana.
Louisiana Small Estate Affidavit
Louisiana has a special set of rules for small estates. This procedure can allow the estate to be divided amongst the heirs without getting the court involved. A small succession is one in which the total value of the property is $125,000 or less at the time of death. If it goes over that amount, you will have to file with the court and have a judge preside over the succession.
You have access to the Louisiana Small Estate Affidavit in order to transfer property to legal heirs. You won’t have to have a court proceeding and it can save time. You are able to use the affidavit as long as your particular situation fits the requirements.
How to Complete a Louisiana Small Estate Affidavit
The affidavit is fairly straight-forward, but there are a few things you have to know first. You will need at least two persons, including the surviving spouse if there is one, and one or more competent major heirs of the deceased to execute the affidavit. You will need to state:
- The date of death and his/her domicile;
- The fact that he/she died intestate;
- The marital status of the deceased; location of the last residence of the deceased and name of surviving spouse plus the surviving spouse’s address, domicile, and location of last residence;
- The names and last known addresses of the heirs of the deceased;
- A property description which includes whether the property was community or separate;
- The value of each item of property;
- 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;
- An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased; and
- 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.
Also, if the deceased did not have a surviving spouse, the affidavit must be signed by at least two heirs. In the event the deceased did not have a surviving spouse and only one heir, then the affidavit must be signed by the heir and one other person who has actual knowledge of the matter.
Can you do a Louisiana Small Estate Affidavit without a lawyer? Technically you can, but you still may want to speak with a Louisiana Succession Lawyer to ensure you’re doing it correctly.
Life Insurance Policies Are Not Included in Successions
As we mentioned earlier, life insurance policies are not part of successions in Louisiana. They are a class of assets that are not required to be made part of the estate. Similar to retirement accounts, life insurance policies are paid directly to beneficiaries. However, you may still have questions regarding life insurance policies that your attorney can answer.
Speaking of life insurance policies…
Louisiana Life Insurance Policy Search
Even though life insurance policies are not part of the succession, now is the time to locate missing policies so the family can use the funds for expenses. You may be searching all over the internet for “How to look up a life insurance policy,” hopefully we can give you some guidance.
The Louisiana Department of Insurance may be able to assist you with your search. All you have to do is go to LDI.la.gov and submit a request. The Louisiana Department of Insurance will send your request to every life insurance company in Louisiana. There’s a chance they won’t be able to find the policy, especially if it’s an old policy. But, it’s worth a shot.
Here are a few other ways to conduct a Louisiana life insurance policy search:
- Check with the deceased’s former employers as they may have group life policies in force.
- Search through paperwork at their residence.
- Check old mail for a statement.
- Call the bank as they often offer policies to their clients.
- Visit associations, organization or work memberships they may have participated in.
- Speak with the manager at their place of business.
This article may help: How to Find a Lost Life Insurance Policy in Louisiana.
Disinherison Law in Louisiana
We wrote an entire article about Louisiana Disinherison Law which you can find right HERE. We can give you a refresher right here.
Disinherison law in Louisiana is governed by Louisiana Civil Code articles 1617 – 1626. Disinherison only pertains to Forced Heirs. If an heir isn’t classified as a “forced heir” you can simply leave them out of your will. A forced heir is an heir of the first degree who are 23 years or younger or are incapable of taking care of themselves due to physical or mental limitations.
You are required by law to leave a portion of your estate to your forced heirs when you die and you cannot “will” them out. However, you can bring an action for disinherison, but you have to have “Just Cause” to do so.
The disinherison must be: 1) Made expressly and 2) for just cause or else it will be null and void. It also must fit one of the points in Louisiana Civil Code Article 1621.
Defenses to Disinherison
“A disinherison shall not be effective if the person who is disinherited shows that because of his age or mental capacity he was not capable of understanding the impropriety of his behavior or if he shows that the behavior was unintentional or justified under the circumstances. Proof of this defense must be by a preponderance of the evidence, but the unsupported testimony of the disinherited heir shall not be sufficient to establish this defense.”
Basically, an heir can defend against disinherison if he or she can prove:
- They are a forced heir
- The behavior was unintentional
- The behavior was justified
Louisiana Succession Checklist
Once you’ve chosen an attorney to assist with the succession, you will need to begin gathering papers for your meeting. Your attorney will need these items to begin the Succession paperwork and prepare filings. There’s a good chance he or she will need more documents, but this will give them a start.
- Death Certificate – attorney will need an original
- Last Will and Testament if there is one
- Marriage information or Judgment of Divorce
- Vehicle Titles
- Investment Accounts
- Bank Accounts
- Real Estate Appraisal
- LIst of Debts
- Funeral Costs
- List of the deceased’s children
Notice that Life Insurance or Retirement Accounts weren’t added to the list. That’s because those items do not go into the succession as the designated beneficiary is entitled to them.
More Louisiana Succession Law articles:
- Flat Rate Legal Fees Vs. Hourly Rates for Successions
- Louisiana Usufruct Laws
- Louisiana Domicile Explained
- Naked Owner Laws Explained
- Louisiana Forced Heir Law
- Louisiana Disinherison Law
- Louisiana Last Will and Testaments
This blog post in no way is intended to replace an attorney consultation. It is highly recommended that you seek the advice of a Louisiana Succession Attorney to assist you in your legal matters. Again, nothing on this site is to be taken as legal advice.