Louisiana Simple Successions Explained:
A succession is the process of transferring property from a deceased person to their heirs (intestate) or legatees (testate). Other states refer to this as “probate” and in Louisiana the terms are often used interchangeably. Successions can be simple, or they can be very complex, depending on the circumstances of the estate and the level of cooperation among the heirs or legatees.
There are two types of judicial successions: successions under administration and simple successions. Simple successions are also commonly referred to as “simple possession” or “putting in possession.” The selection of which type of succession to use depends on what issues need to be resolved in the estate and whether the heirs or legatees of the estate are cooperative. Generally, simple successions are much quicker and cheaper than administrations, thus, they are preferred when available.
When Can a Simple Succession be Opened?
Per La. Code Civ. Proc. art. 3031, if the decedent died testate, a simple succession can be opened if all of the legatees are competent and accept the succession, and no creditors have demanded an administration. Per La. Code Civ. Proc. art. 3001, if the decedent died intestate, a simple succession can be opened if the estate is relatively free of debt and all heirs are in agreement. “Relatively free from debt” includes being current on the home mortgage, and the total amount of debt is relatively small when compared to the total assets. In other words, the estate must be solvent.
The Simple Succession Process:
In a simple succession, the heirs or legatees are simply put into possession of the estate assets without the necessity of an administration. If the estate qualifies for a simple possession, the succession attorney will prepare the pleadings to open the succession.
These pleadings will typically include a Petition for Possession or Petition to Probate Last Will and Testament; an Affidavit of Death, Jurisdiction, and Heirship; a Sworn Detailed Descriptive List of Assets and Liabilities, and a Judgment of Possession. Other necessary documents include the death certificate and the will if there was one. Generally, no hearing will be required. This means it can be complete in a matter of a few weeks rather than months or years.
When the Judgment of Possession is granted by the court, the heirs or legatees then become the legal owners of the decedent’s assets. The heirs or legatees can then use the Judgment of Possession to close bank accounts by presenting it to the bank(s); transfer automobile titles by bringing it to the DMV; and transfer immovable property by recording it in the conveyance records of the parish in which the property is located.
Preparing for a Simple Succession:
It is not uncommon for clients to walk into our office many years after a loved one has passed. This usually occurs when a spouse or child has lived in their house and now someone wants to sell just to find out they cannot until the estate is probated.
While there is no time limit to open a succession, it is much easier to gather the required information when it’s fresh. Bank accounts will be frozen until the judgment of possession in issued. Heirs and legatees may move away. Creditors may not get paid regularly. Thus, it is recommended to start the process as soon as possible.
Also, heirs and legatees will not legally receive their inheritance until the process is complete, and a judgment of possession has been issued. A good succession attorney will explain all the information he needs in the initial consultation and may even be able to help obtain it. However, if you bring the following to the initial consult, you will be ahead of the curve:
- The original Last Will & Testament (if applicable);
- The Certificate of Death;
- A list of all heirs or legatees, including their full names, addresses, and contact information;
- A list of all assets and their values;
- A list of all debts and their balances;
- The legal property description of any immovable assets; and
- Copies of bank statements, bills, and certificates of title.
In an administration, everything is scrutinized by the court. In a simple possession, the judge is mainly looking to make sure the pleadings meet the statutory requirements and will rely on the information provided in the pleadings and exhibits. It’s important to be as accurate as possible though, particularly with the Sworn Detailed Descriptive List.
It can sometimes be difficult or even costly to determine the value of assets, especially if the succession is opened years after death. The values must be given as of the date of death. Imagine trying to determine the value of a home five or ten years ago.
Further, it’s important not to guess or cut corners as there can be tax implications with the numbers provided in the Sworn Detailed Descriptive List. For example, providing a value too low for a home can lead to capital gains taxes upon its eventual sale. On the other hand, valuing it too high may trigger the assessor to increase the annual property tax bill.
New Orleans Succession Attorneys:
We are a Gretna law firm that has served the New Orleans area since 1980. Our succession lawyers are experienced at handling all types of successions in Louisiana including simple successions. We can help guide you through the process to quickly obtain a judgment placing you in possession of your inheritance. 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.
