Louisiana Probate Process
Since the dawn of man, people have developed rules relating to the concept of ownership of possessions. When a person dies, ownership changes. The probate process is the mechanism to effect a change of ownership from a deceased person to his or her rightful heirs.
How Does Probate Administration Work in Louisiana?
The probate process in Louisiana process usually starts with filing a Last Will and Testament with the court of appropriate jurisdiction. Probating a Will in Louisiana isn't as simple is just recording the Will. A Petition for Probate must be prepared requesting the Court to open a Succession, which is given a Docket Number like a civil lawsuit. A court Order is issued admitting the Will to probate and an Executor is appointed with responsibility for administering the estate.
If the Decedent died without a will (intestate), then a Petition for Appointment of Administrator would be filed requesting that a court of appropriate jurisdiction appoint an Administrator who would be charged with responsibility for admininistering the intestate succesison.
In the event of a dispute over control of the succession, the qualifications of an executor in Louisiana are set forth by statute, which gives preference to certain individuals based on proximity of their relationship to the Decedent. An individual named in a Will would be given the highest priority. The Court is required to select the "best suited" or "most qualified" among the petitioners.
The Executor or Administrator is required to file an Oath of Office, as well as post bond or security in an amount at least equal to the value of movable assets (anything other than real estate). The requirement to post a bond is commonly waived in a valid Last Will and Testament, or it can be reduced upon showing good cause to the court. The bond can be in the form of cash, a commercial bond, or a mortgage upon land. The requirement to post bond or security is intended to protect the heirs or legatees from misappropriation of funds by the Executor or Administrator.
The Executor (for a testate succession) or Administrator (for an intestate succession) will be granted certain powers and duties. Creditors should be given notice and an opportunity to present claims.
Other pleadings that must be prepared in the course of the administration include:
- Petition for Possession
- Affidavits of Death, Jurisdiction and Heirship
- Sworn Detailed List of Assets and Debts
- Renunciation of Inheritance or Legacy (if applicable)
- Judgment of Possession
The Executor or Administrator will be required to prepare and file Sworn Detailed Descriptive List of Assets and Liabilities of the succession, which is basically an inventory of all assets of the succession. The fair market value of each asset must be stated in the inventory, which will require that certain assets be appraised. Louisiana law now allows the Sworn Detailed Descriptive List of Assets and Debts to be filed "under seal," which will effectively shield the fair market value of the assets of the succession from public view.
All debts of the succession must be paid or provided for before the Executor or Administrator may proceed to place heirs or legatees into possession of the assets. The mechanism to request that the heirs or legatees to be placed into possesson of assets of the succesion would be a Petition for Possession and a Judgment of Possession.
A Judgment of Possession is the end result of the succession, which actually places the heirs or legatees into possession of the assets. The signature of the presiding Judge on the Judgment of Possession has the force and effect of law and serves as an "act of conveyance."
If the Decedent owned an interest in real estate (immovable property), the Judgment of Possession should be recorded in each parish in which the Decedent owned real estate. The failure to do so will cause title issues. If Decedent owned real estate outside of the State of Louisiana, an ancillary probate will be required.
What is a Small Succession Affidavit Procedure?
Court costs for a "Small Succession" are reduced by one-half (1/2) of the normal filing costs. A Small Successon is defined in Louisiana as an estate with a value less than one hundred twenty-five thousand ($125,000.00) dollars. Administration of a Small Succession is the same as a normal succession, except for reduced fiiling costs, unless the Small Succession Affidavit Procedure is available.
A probate is not required in Louisiana if the estate qualified sor the Small Succession Affidavit Procedure. If available, a Small Succession Affidavit (or Small Estate Affidavit) can be filed iin the conveyance records of the appropriate court in lieu of a succession (avoiding the probate process entirely).
The Small Succession Affidavit procedure is available:
- To the small succession of a person domiciled in Louisiana who died intestate (without a Will);
- To the small succession of a person domiciled outside the state of Louisiana who died intestate or whose testament whose testament has been probated by court order of another state; or
- To the succession of a person who died intestate more than 20 years prior to the filing of the affidavit of small succession, regardless of the value of the estate.
The small succession affidavit procedure is NOT available:
- for someone who died testate (with a Will)
- the heirs of the decedent include persons other than descendants, ascendants, brothers, or sisters of their descendants, or the suriviving spouse. If aunts, uncles, or counsins are heirs, then the small succession affidavit procedure is not available.
What are the Qualifications of an Executor in Louisiana?
An Executor in Louisiana must be at least 18 years old and not otherwise "disqualified." An executor is disqualified from serving if they are:
- interdicted or mentally incompetent
- a convicted felon
- a non-resdident of the state of Lousiana, unless a registered agent has been appointed in the state of Louisiana
- a corporation not authorized to perform duties of the office in the state of Louisiana
- a person of "bad moral character."
Litigation over the qualifications of an executor often centers on allegations of "bad moral character," which is not a defined term in Louisiana law. A Louisiana judge has a tremendous amount of discretion in determining what may constitute "bad moral character."
Does an Administrator or Executor Have to be Appointed?
An administrator or executor does not always have to be appointed for a Louisiana succession. In fact, many times a succession is never put under administration. Administration is required when there are issues that need attention before the heirs or legatees can be put in possession of assets of the estate, such as paying or providing for debts or othe claims, liquidating investments, selling real estate, or providing an allowance for a surviving spouse.
If there is no cause for administration of a Louisiana succession, then the heirs of legatees can be put into possession of the assets of the estate without administration, which saves a step in the process.
What is Independent Administration?
Louisiana enacted the concept of Independent Administration in 2001 with the adopton of Louisiana Code of Civil Procedure Articlles 3396, et seq.
Prior to the option for Independent Administration, court approval was required for every step in the process of administration of a succession resulting in higher costs and longer periods of administration.. For example, if the Administrator or Executor of a Succession need to sell real estate, a Petition for the Sale of Immovable Property would be filed, notice would be published twice in a newspaper of general circulation, and then after about 45 days, the Court would issue an Order authorizing the sale. A similar process would be required for the payment of debts, or any other activity or action of the Administrator. Court approval is still required activities of an Administrator or Executor, unless the Succession is placed under Independent Administration.
Independent Administration contemplates the appointment of an Independent Executor
of a testate succession, or an Independent Administrator
of an intestate succession. Court approval is NOT required for actions of an Independent Executor or Independent Administrator, who has full authority to take any action deemed necessary in the discretion fo the Independent Executor or Independent Administrator. For example, an Independent Executor has full authority under Louisiana law to sell real estate of a succession without the need for court approval of the sale, which saves time and money!
A Louisiana succession qualifies for Independent Administration if the Testator (a person who writes a Last Will and Testament
) names an "Independent Executor" in the Will. The word "Independent" is a magic word and that really is all that is necessary.
An intestate succession where there is no Will, or a testate succession that fails to name an "Independent" Executor, can be placed under Independent Administration with the consent of all heirs (for an intestate succession) or residual legatees (for a testate succession). Once converted to Independent Administration, the Independent Executor or Independent Administrator, as the case may be, will have full powers of Independent Administration.
An Independent Executor or Independent Administrator does not have to post a bond.
Other Useful Articles About the Probate Process in Louisiana
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Whether you need a simple probate administration, or require additional legal assistance for a more complicated probate situation, Theus Law Offices provide comprehensive, experienced representation. Our Estate Administration lawyers will guide you through the process with confidence and security.
Attorney J. Graves Theus, Jr. has been certified as a specialist in probate and estate administration by the Louisiana State Board of Legal Specialization. Theus Law Offices serves the entire State of Louisiana handling both small and large successions. In addition, Theus Law Offices has successfully litigated numerous contests involving wills and trusts.
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