Successions With Absent Heirs or Legatees:

Successions are either intestate or testate.  In an intestate succession, the heirs of the decedent inherit his or her estate.  In a testate succession, the decedent leaves his or her property to one or more legatees.  It is not uncommon for a client to come to our office to open the succession of a loved one, and during the process of determining who all the heirs or legatees are it becomes apparent that the whereabouts of one or more heirs or legatees are unknown.  If attempts at locating them fail, they become known as absent heirs or absent legatees.  This can complicate a succession.

In simple successions, also known as putting in possession, all the legatees must accept the succession, or all the heirs must agree to not place the succession under administration.  Putting in possession is the preferred type of succession because they are often cheaper and much quicker to close.  

What Happens if an Absent Heir or Legatee Can’t Agree?

Fortunately, Louisiana law addresses this situation directly for intestate successions.  The Court must appoint an attorney to represent the absent heir.  La. Code Civ. Proc. art. 3006 provides:

If a competent heir of an intestate resides out of the state and cannot be located, or his whereabouts are unknown, the other competent heirs may be sent into possession of the property without an administration of the succession, as provided herein and in Articles 3004 and 3005.

Upon the filing of the petition for possession, the court shall appoint an attorney at law to represent the absent heir, and shall order him to show cause why the heirs of the intestate should not be recognized, and sent into possession of the property of the intestate without an administration of the succession.

After a hearing on the rule against the attorney for the absentee, if the court concludes that the succession is thoroughly solvent and that there is no necessity for an administration, it may send all the heirs of the intestate, including the absentee, into possession.

For testate successions, La. Code Civ. Proc. art. 3031 provides:

When a testament has been probated or given the effect of probate, and subject to the provisions of Article 3033, the court may send all of the legatees into possession of their respective legacies without an administration of the succession, on the ex parte petition of all of the general and universal legatees, if each of them is either competent or is acting through a qualified legal representative, and each of them accepts the succession, and none of the creditors of the succession has demanded its administration.

Here, “qualified legal representative” can be construed to include court-appointed attorneys.  Further, La. Code Civ. Proc. art. 3171 addresses both testate and intestate successions, providing:

If it appears from the record, or is otherwise proved by an interested party, that an heir of an intestate, or a legatee or presumptive legal heir of a deceased testator, is an absentee, and there is a necessity for such appointment, the court shall appoint an attorney at law to represent the absent heir or legatee.

What Does a Court-Appointed Attorney Do?

The court-appointed attorney, also known as a curator ad hoc, must fulfill certain duties.  Specifically, La. Code Civ. Proc. art. 3172 states:

The attorney at law appointed to represent an absent heir or legatee shall:

(1)  Make all necessary efforts to determine the identity and address of the absent heir or legatee, and to inform him of the death of the deceased and of his interest in the succession;

(2)  Represent the absent heir or legatee in the succession, and defend his interests in all contradictory proceedings brought against him therein; and

(3)  Take any conservatory action necessary to protect the interests of the absent heir or legatee, including the filing of all necessary suits.

First, the curator must make reasonable efforts to locate the absent heir or legatee.  Reasonable efforts include sending a certified letter to the last known address, conducting internet searches to look for updated address or phone numbers, placing an ad in the local newspaper where the absent legatee or heir was last known to reside, and contacting any friends or relatives who may know their whereabouts.

The curator must also represent the absent heir’s or legatee’s interests.  Because little is known about their circumstances or wishes, there is often few defenses or rights asserted by curators.  However, per art. 3006 the curator will have to show cause why the heirs should not be recognized and placed into possession.  This includes the absent heir, who will still inherit his or her portion despite being missing.  If the curator is successful at locating the absent heir or legatee, the curator may offer his or her services or advise them to retain other counsel.  At that point, they would no longer be considered to be absent and the succession can proceed accordingly.

Louisiana Succession Attorneys:

We are a Gretna law firm that has served the New Orleans area since 1980.  Our experienced succession lawyers can help you locate absent heirs or legatees, and if they cannot be found, our team can help you complete the succession or probate in their absence.  We take pride in offering a personal and trusted experience.  Call us today for a free consultation and find out why so many of our clients come back to us.