Successions When a Legatee or Heir Dies:
Successions are either intestate or testate. Intestate successions occur when there is no will, the will is invalid, or the will does not dispose of all the decedent’s property. Testate successions occur when there is a valid notarial or olographic will. An heir is a person who inherits property in an intestate succession. A legatee is a person who is bequeathed property in a testate succession.
In Louisiana there are three ways to inherit: (1) in his or her own right, (2) via representation, or (3) via transmission. An heir inherits in his or her own right per the intestate order of succession, and a legatee inherits in his or her own right per the bequests of a last will and testament. Representation occurs when a would-be heir dies before a decedent. The effect of which is to put the representative in the place, degree, and rights of the person represented. If the heir or legatee had descendants, then those children or grandchildren would “step in the shoes” of the ascendant they represent. Transmission occurs when an heir or legatee dies after the decedent they were inheriting from, but before the succession was closed. When this happens, their rights are transmitted to his or her own successors. Transmission is an operation of the civil law tradition of “seizen” in which legal title to the decedent’s property vests immediately in the successors.
Who inherits when an heir dies before you?
Per La. Civ. Code art. 888, in an intestate succession descendants succeed in equal portions and by heads if they are in the same degree, and they take by roots if all or some of them succeed by representation. “By heads” means that each of the heirs receive an equal portion in that degree of relation. In practice, this simply means each child receives an equal share of the estate.
However, when a child dies before a parent, who receives their share? If it were by heads, the remaining siblings would share the entire estate if one heir died before the parent. Luckily, art. 888 addresses this directly, and dictates that the heirs succeed “by roots” also known as stirpes. This means that the representatives of the deceased heir split his or her portion, rather than getting an equal portion with the other heirs. In essence, each child of the decedent forms one root, and each root receives an equal portion. For example, if a decedent had two children, one of which died before him, and that predeceased child had two children of her own, then the surviving child would receive 50% of the estate and each grandchild that represent the deceased child would receive 25% of the estate.
Per La. Civ. Code art. 884, representation is also permitted among the descendants of siblings of a decedent, which would come into play if a decedent never had children of his or her own.
Who inherits when a legatee dies before you?
It depends. Preferably, the last will and testament will address this. If not, it depends on who the legatee is. When a legatee in your will dies, it is always recommended that you update your will. Regardless, we also recommend that you list successor legatees so that your bequests are accounted for before your will can be updated.
The language a will uses to address successors to legatees is also important. A will may appoint a specific person to be the successor legatee. For example, it may state: “I bequeath my home to John, and in the event that John predeceases me I bequeath my home to Jane.” If the will uses broad language, the testator needs to be careful of the differences in “by heads” and “by stirpes.” For example, the will may state: “I leave my entire estate to my children, by heads.” In this case, if one of the decedent’s children predeceases him or her, then the other children will inherit the entire estate. Alternatively, the will may state: “I bequeath my entire estate to my children, by stirpes.” In this scenario, if one of the decedent’s children predeceases him or her, then that child’s descendants will inherit his or her share.
If a will does not appoint a successor legatee, this is known as a lapse in which case testamentary accretion takes place. In general, the universal legatee will then receive any particular or general bequests; the other joint legatees will get any lapsed joint bequests; and in the event that the universal bequest(s) lapse, then the estate will devolve by intestacy. However, Louisiana does have a version of an “anti-lapse” law which is found at La. Civ. Code art. 1593. Under Louisiana’s anti-lapse provision, when a legatee is a child, sibling, or descendant of a child or sibling, then “accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent’s death.” The result is that when you leave property to a child, grandchild, sibling, or niece or nephew, then their heirs will inherit that property should they die before you. If you leave property to anyone else such as a spouse, parent, distant relative, or friend, then if they die before you the property will pass to your universal legatee(s), their joint legatee, or by intestacy if neither apply.
Who inherits when a legatee or heir dies after you?
Per La. Civ. Code art. 934, succession occurs at the death of a person. Per La. Civ. Code art. 935, immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them. This concept is known as seizin. The rights of a successor are transmitted to his or her own successors at death, whether or not he or she accepted or even knew about the succession. Thus, in this situation it is clear that when a legatee or heir dies after a decedent but before they accept the succession, then their heirs or legatees inherit in their place.
New Orleans succession and estate planning attorneys:
Our succession lawyers can quickly advise you who the proper heirs are in an intestate succession, or in a testate succession in which one or more legatees have also passed away. Further, our estate planning lawyers will happily help you plan your estate and draft your last will and testament in a way to ensure that your wishes are carried out in the event that a legatee or heir dies before you do. Finally, we always recommend updating a will should that occur, and we can assist you in making those changes.