Louisiana's laws regarding the transfer of a deceased person's (decedent's) property their heirs after death are unique among the 50 states. It always helps if family members take a few preparatory steps to cope with the awkward and sometimes lengthy legal process. Preparation can also relieve some of the stress following the death of your loved one. Brown Weimer, LLC can help ease some of the burdens at this difficult time. In fact, we created the following tips to make the Succession process easier here in New Orleans: How to Avoid Family Battles After a Loved One's Death.
Let's start with a few basics.
What is the Succession process? The term Succession refers to Louisiana's legal process to transfer the ownership of the deceased person's property to their heirs. It's what other states call Probate. Heirs or descendants cannot take possession of the deceased's property until the Succession documents are filed with the court and the court grants the heirs' Petition for Possession.
Doesn't the property simply pass under the terms of the will? No. A Succession petition must be filed with the court whether or not the deceased died with or without a will. If your family member dies with a valid will in place then the law considers him/her to die “testate.” If the person dies without a will, or the will is invalid for some reason, then the law considers him/her to die “intestate.”
Assign a point person. The Succession process is easier if one person in the family handles the administration side of things. The property a person owned at his death is called his Estate. One of the typical clauses in a will names the executor or executrix of the will to carry out the will's provisions and handle the Estate's Succession process. If the person died without a will, then the family members should agree on one person to handle administrative matters. It sometimes happens that there is disagreement among family members as to who should handle the administrative matters of the Estate. In that case, the family may want to consult with a lawyer with experience in Louisiana's Succession laws. Brown Weimer, LLC has 45 years of combined experience in these complicated matters and can help the family's chosen administrator deal with these issues.
Keep in mind that the deceased may have owned property in more than one parish. Owning property in several parishes can make it confusing with respect to where to file the Succession proceeding. If that is the case, the family should consult with an attorney.
Pull important documents together and keep them in a safe place. There are many documents that need to accompany the Petition for Possession. As you organize your loved one's personal belongings, you will find many of these documents in various places in the person's home. A few of the documents you need to find are:
- the Last Will & Testament, if one already exists;
- titles for any vehicles including VIN numbers;
- bank statements;
- records regarding real estate owned by the deceased (such as tax records and deeds).
Once you have the documents, make a list of all real estate and movable property owned by your loved one, including detailed descriptions and the appraised value of the property. The court will require this information filed in a court document known as a Detailed Descriptive List.
You will also want to find life insurance documents including any beneficiary designation paperwork. Life insurance does not become part of the Succession case but you will want them so you can contact the companies involved and begin distribution to the beneficiaries.
You will also need to obtain copies of the deceased person's Death Certificate for filing with the Court as well as with insurance companies and banks for any payable on death accounts and with Social Security, if applicable.
Pool the family's knowledge about the deceased's life. In some cases, the administrator may know sufficient detailed information about the deceased's life; in other cases, he/she may need to poll the family members to get a complete picture. For example, was the person single/married/divorced, how many times was he/she married, and how many children did he/she have (if any).
Find two witnesses. Louisiana law requires that two people who knew the deceased person certify formally to the information provided about the person's life. The form they sign is an affidavit called “Death, Domicile, and Heirship”.
Intestate Succession. Probate and Succession are always easier if the deceased person had a neat and tidy will drawn up describing how property should be distributed. Family disputes often arise when there is no will or where the will is invalid for some reason. In those cases, there are special laws called intestate succession that apply to property distribution when a person dies without a will.
Final Thoughts: Community Property Law. Louisiana has special rules that take into account community property owned by a husband and wife. Community property refers to the property attained by the married couple during the marriage:
- by the efforts/skills of either one of the spouses;
- property donated to both spouses jointly;
- revenue from community property and from the separate property unless specifically reserved as separate property;
- all property acquired during the marriage that was not specifically reserved as separate property; and
- all property in a spouse's possession unless the spouse proves it to be separate property.
The rules regarding community property may complicate the distribution of a deceased's property to any children of the marriage and the surviving spouse. In Louisiana, the death of one spouse terminates the legal rules regarding community property unless a will directs otherwise. These rules are too complicated to go into here but Brown Weimer, LLC stands ready to help you with questions regarding intestate succession if your loved one died without a will.
If you would like to discuss Succession (probate) matters with one of our experienced attorneys, please contact Brown Weimer LLC at (504) 561-8700. Make us your resource for all your legal questions.