Successions and Probate

Before an estate can be distributed it has to go through the succession process.  Depending on the circumstances, the process can be simple and quick or it can be complicated and expensive.  Our succession attorneys are experienced at the process and can help make the process as easy as possible.  We can help you identify the rightful heirs, determine whether there are forced heirs, appraise the assets, identify creditors, and distribute the estate to the heirs or legatees.  In most instances, it is not a good idea to wait to open a succession.  Witnesses and co-heirs can move away or die, necessary documents can be lost, and assets can deteriorate.  Call an experienced succession attorney sooner rather than later.

TESTATE VS. INTESTATE

A testate succession occurs when an individual dies with a will, whereby their assets are divided according to the terms of the will if it’s valid.  An intestate succession occurs when an individual dies without a will, in which case the assets are divided according to Louisiana statutes and code articles.

The intestate order of inheritance is as follows:

• Community Property:
  1. Descendants – subject to a spousal usufruct.
  2. Surviving Spouse – if there are no children of the marriage.
• Separate Property:
  1. Descendants – children, or their children if all of the decedent’s children predecease him or her.
  2. Parents and Siblings – siblings inherit naked ownership subject to a parental usufruct.  If there are only siblings or only parents that survive, then they inherit full ownership.
  3. Surviving Spouse – the spouse inherits next if they were not judicially separated.
  4. Other Ascendants – grandparents.
  5. Other Collaterals – the aunt(s), uncle(s), or cousin(s) that are closest in relation.
  6. State – if the decedent passes with no surviving relatives, the State of Louisiana receives the estate.

FORCED HEIRS

Forced heirship arises in certain testate successions, and essentially prevents forced heirs from being disinherited by will.  Children under the age of 24 and children of any age who are permanently disabled are forced heirs and must inherit a portion of the estate.  Grandchildren can also be a forced heir if their parent is predeceased and would have been 23 or younger at the time of the death of the decedent.  Grandchildren whose parent predeceased the decedent and who are themselves permanently disabled are also forced heirs regardless of how old their parent would have been.

If the decedent leaves one forced heir, the forced portion must be at least one fourth of the decedent’s estate.  If there are two or more forced heirs, the forced portion is one half of the decedent’s estate.  However, in no event will the forced portion exceed that share which the forced heir would inherit if the decedent died intestate.  All donations made by the decedent within the last three years of his life are included in the estate.

SUCCESSIONS UNDER ADMINISTRATION VS. PUTTING IN POSSESSION

Administration is the process of managing the assets of the estate, paying or settling with creditors, and resolving any issues that must be addressed before the decedent’s assets can be distributed.  Administration is more time consuming and often involves more costs, but unfortunately is often unavoidable.  Some of the issues that necessitate an administration are when there is a contested will, if there are questions about the assets, or if there is some obstacle to the heirs accepting their inheritance.

A succession without administration, often referred to as a simple putting in possession, is more common but certain requirements must be met for it to be available.  Putting in possession is a quicker, cheaper, and easier process.  It is available in a testate succession if all the legatees are competent, all the legatees accept the succession, and none of the creditors of the estate demand administration.  In an intestate succession, the heirs can be put in possession without administration if the estate is “relatively free of debt” and all the heirs request that the succession be without administration.

DOUBLE SUCCESSIONS

It is not uncommon for a client to walk in after their second parent has passed, and they disclose that there was never a succession opened for the first parent who passed.  In such an instance, it is cost effective to file a double succession for both at the same time.  It is necessary to open and close both successions in order for their co-owned property to properly transfer to the heirs.  Doing them in the same proceeding essentially cuts the court costs in half.  Similarly, a double succession can be opened for decedents from multiple generations.

The probate lawyers at Bowes, Petkovich & Palmer, LLC can analyze your situation and advise you throughout the process as to any of the above issues.  We have decades of experience handling successions in the New Orleans and surrounding areas.  Call us today for a free consultation.

Types of Successions:

Under Administration

Putting in Possession

Small Successions

 

Useful Resources:

Forced Heirship and Collation