Louisiana Successions Under Administration
A succession under administration happens in stages from the opening of the succession to the issuance of a judgment of possession. A succession must be opened under administration whenever there needs to be a judicial determination of any of the following matters: whether a will is valid; whether a will was revoked prior to death; whether the decedent was solvent, or whether assets the decedent owned must be sold to pay creditors; when there is a challenge by a forced heir; if heirs are absent; or if the heirs are in disagreement as to which heirs inherit what property.
When a succession is administered, someone must be appointed as the succession representative, often an heir or legatee. If a will names an executor, the judge will appoint that person to be executor or succession representative. If the will does not name an executor or the named representative refuses to serve, the judge will appoint someone. If the decedent dies without a will, the judge will appoint an administrator.
Then the executor or administrator will be tasked with collecting the assets of the estate, determining what debts are owed by the estate and paying or settling with the creditors, and initiating the court proceedings to resolve whatever issue(s) made the administration necessary. When the issues have been resolved, the succession can be closed and a judgment of possession issued.
The process can be simplified if the succession is eligible for an independent administrator rather than a court appointed administrator. Independent administrations are cheaper and less time consuming.
Independent Administration versus Court Appointed Administration
Independent administration can be required by a valid will. Otherwise, it is a matter of consent among the legatees or heirs. Independent administrators are not required to post bond unless required by the will.
If court appointed administration is necessary, the succession representative performs their duties under court supervision. The succession representative must file an inventory of the assets of the estate or a sworn detailed descriptive list, listing the assets of the estate and the fair market value of each item on the date of death. The administrator may be required to post bond in an amount that exceeds one-quarter of the gross value of the estate. The succession administrator is required to file an annual accounting with the court.
The succession administrator will need prior court approval when encumbering the assets of the estate. Any creditor of the estate can submit a claim to the succession representative for payment. The succession representative should not pay debts from assets of the estate without publication and court authority, unless it is an “urgent debt” or a debt that occurs in the regular course of a business that the estate owns.
A will can be contested for a number of reasons, including: if it does not appear to be in proper form; if the signature is suspected to be forged; if the decedent had a mental infirmity at the time he or she executed the will; or if the will contains bequests that were influenced by fraud or duress.
Wills can be challenged up to five years from the date it was admitted to probate in Louisiana.
The succession representative owes a fiduciary duty to the heirs and creditors of the succession. A succession representative can be removed for many reasons, including: not qualifying for the appointment; not posting the required bond; if the representative becomes incapable of discharging their duties; if the representative has mismanaged the estate; or if the representative has failed to perform any duty imposed by law or by the court.
It is not uncommon for heirs to disagree as to what should happen to an asset they inherit together. For instance, a house can be inherited by multiple siblings, and one wants to sell it while another wants to live in it.
New Orleans Succession Attorneys
Bowes, Petkovich & Palmer, LLC is a Gretna law firm that has served the New Orleans area since 1980. Our experienced succession lawyers can handle your loved one’s succession under administration from beginning to end. 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.