If a person dies without a will, they can neither determine what happens when they pass nor select who inherits their assets. Instead, assets are distributed according to state statute. These statutes are known collectively as the law of intestate succession, which varies from state to state. More than 70% of American adults today do not have a will, so the law of intestate succession comes up often. If you live in Louisiana and do not have a will, there are two rules governing how assets will be distributed after death.
Rule 1: The Deceased was Married at Time of Death
A “surviving issue” refers to any of the deceased's children or grandchildren, and to the surviving spouses' children or grandchildren. If there is no surviving issue, then the entire estate including both separate and community property passes to the surviving spouse.
If there is at least one surviving issue, who is not also issue of the surviving spouse, one-half of the deceased's separate property and the entirety of their community property are inherited by the surviving issue.
Interest in the community property is divided equally among all issue of the deceased, including those who are issue of the surviving spouse and those who are not. The other one-half of separate property is inherited by the surviving spouse.
In Louisiana, any shared property is considered to belong equally to each spouse, so this is where intestate succession can get dangerous. Even if the surviving spouse bought the majority of the community assets, they would still lose half of them to the surviving issue is their partner died without a will.
This can get especially messy in the case of large, expensive assets such as a home. If a couple have one child but the husband also has a child outside the marriage and dies without a will in Louisiana, then half the house now belongs to each child.
His surviving wife can neither sell nor refinance the property without the consent of both children. If both children do agree to a sale, both must be paid the value of their ½ interest in the home after the sale. Also, since the house no longer belongs to the wife but to children who are minors and cannot legally sell the house on their own, she will have to spend time and money in court being appointed the conservator of her child so she can sell the home in her child's stead.
Overall, it is far simpler and beneficial to all parties for anybody who has issue that are not also the issue of their spouse to decide beforehand how assets will be distributed. It is strongly recommended that anybody in this situation should take the time to sign a will.
Rule 2. No Surviving Spouse; Or There Is a Surviving Spouse Who Does Not Inherit All of the Deceased's Assets
If any part of the estate does not pass to the surviving spouse or there is no surviving spouse, assets will be split among all surviving descendants of the deceased by representation. Each immediate child of the deceased gets an equal share of assets, but if one or more children are deceased and had children then those children would equally split their parent's share. In other words, if someone died in Louisiana without a will and had two children, each would inherit half of the estate. If one of those children was deceased but had two children of their own, then each of those children would inherit a quarter of the estate, half of their parent's half each. If a deceased child does not have any descendants, their share will be divided equally among all other surviving issues.
In the case that there are no surviving descendants, the entire state will be split equally among the deceased's parents, assuming both survive, or else the entire estate will be inherited by the surviving parent.
If there are no surviving descendants or parents, the estate will be split among descendants of the deceased's parents; in other words, their siblings and descendants of their siblings. The rules for how shares are split among siblings and children of deceased siblings are the same as that of the deceased's own children, and children of children.
In the extreme case that there are no surviving descendants, parents, or descendants of parents, half the estate is inherited by the deceased's paternal grandparents or descendants of paternal grandparents, with the same rules of representation, while the other half similarly goes to maternal grandparents and descendants.
To sum up, if you die in Louisiana without a will, your inheritance will stay in the family one way or another. That said, if you have no children or other immediate family, your wealth may pass on to family you have no real connection with. If this is the case, you may prefer to leave some of it to others who have been important in your life but are not legally family, or else to some charity or cause that means something to you. And to do so, you will need a will.
Reasons a Person Might Not Need A Will
It is strongly recommended that every adult should sign for a will, except in a few rare circumstances.
- There is no person or charity in the world the person would want to leave something to.
- The person does not own anything at all.
- There is no third reason. If you have at least a dollar to your name and there is someone you care about who could use the dollar when you do not need it anymore, you must absolutely have a will.
Anybody who would inherit assets through intestate succession but dies within one hundred and twenty hours (five days) of the deceased is considered to have died before the deceased and inherits nothing. This may seem a trivial distinction, but it means that the assets are inherited according to the original intestate succession, rather than the will of the heir.
To illustrate, imagine someone with no spouse and one son dies without a will. The son inherits the entire estate. And the son's own will leaves everything to his first of two children. If the son dies seven days after the death of the deceased parent, the first child inherits everything. If he dies three days after the death of his parent, however, the estate is divided between the two surviving children equally.
For the purposes of intestate succession, adopted children are considered to be children of their adopted parents and not of their biological parents.
Get Started on Your Succession Plan with a Free Consultation
Contact us at Brown Weimer, where we do trust and probate work to help those grieving with the loss of a loved one deal with legal issues.
If you're interested in starting to lay out your succession plan or exit strategy, we offer consultations to answer your questions and help you explore your options.
You can contact us by calling our offices at (504) 561-8700.