SUCCESSIONS IN LOUISIANA

1 CHAPTER 12 SUCCESSIONSIN LOUISIANAPaul TuttleSUCCESSION(789)About The AuthorPaul Tuttlein the Managing Attorney of the Title Clearing Project of South-east LOUISIANA Legal Services. He has been an attorney with Southeast LouisianaLegal Services since 1996, working in SUCCESSIONS , title clearing, public benefits,family, housing and foreclosure law. Since 2006, Mr. Tuttle has focused primarilyon succession and title clearing matters that arose out of the Katrina and Ritadisasters. He has been a lecturer on succession law. Mr. Tuttle is a 1996 cum laudegraduate of Tulane Law (790)1. INTRODUCTIONIn LOUISIANA , probate law is called succession law. The terms successionand estate are often used interchangeably to refer to the property that the dece-dent owned at death.

2 This chapter outline discusses LOUISIANA succession lawand procedures for intestate and testate of LOUISIANA Probate or Succession LawsLouisiana probate or succession laws include:Substantive Probate LawLa. Civil Code art. 870-1429 Probate ProceduresLa. Code Civ. Proc. art. 2811 et ProceduresLa. Code Civ. Proc. art. 4031 et property LawLa. Civil Code art. 2325-2437 Treatises and Practice Manuals on LOUISIANA Probate LawL. Carman, LOUISIANA SUCCESSIONS , (3d ed. LexisNexis 2012)C. Neff, LOUISIANA Estate Planning, Will Drafting and Estate Administration,(2d ed. LexisNexis 2004)M. Williams, SUCCESSIONS : Wills and Donations, in LOUISIANA Legal Servicesand Pro Bono Desk Manual (2005) LOUISIANA Probate Laws (West 2012)2.

3 WHAT IS A SUCCESSION? Succession is transmission of the deceased s estate or rights to his succes-sors. Transfer of ownership to the heirs occurs immediately upon death. La. art. 935. An heir may exercise rights of ownership for his interest in anasset of the estate and the estate as a whole before the qualification of an executoror administrator. La. Civ. Code art. 938. Indeed, many indigent clients will takephysical possession of succession property , including immovable property , withoutcompleting the succession. Nonetheless, a succession must be opened and com-pleted in order to exercise important legal rights as to the deceased s estate of the deceased includes the property , rights, and obligations thathe had at death.

4 The estate also includes all rights and obligations that haveaccrued since death. La. Civ. Code art. complexity of a succession depends on the value and type of propertyinvolved, the decedent s debts, and whether there is conflict among family mem-bers. Often, indigent clients either have never heard of or are unfamiliar with theprocedures for opening a succession. They are simply told by the bank, mortgagecompany or an attorney that they had to open a succession before they couldhave access to the deceased s bank account, obtain a home improvement loan, orcash the deceased s settlement surviving spouse may use a La. 9: 1513 affidavit towithdraw up to $10,000 from a checking account, savingsaccount or certificate of (791)1In estates less than $75,000, a simpler succession procedure, called heirship affidavit , may suffice.

5 See La. Code art. IS IT IMPORTANT TO OPEN A SUCCESSION?A succession is opened to get legal possession of immovable and movableproperty, and to gain access to bank accounts, pensions or insurance proceeds forthe successors. The legal possession of immovable property that results from asuccession will give the successors the power to sell the property , refinance, andqualify for the homestead exemption. In the wake of Hurricanes Katrina and Rita,many SUCCESSIONS had to be completed in order for LOUISIANA homeowners toaccess state and federal rebuilding SHOULD A SUCCESSION BE OPENED?A succession should be opened as soon as practicable after the decedent sdeath.

6 Sometimes, it is necessary to immediately open SUCCESSIONS to use thedecedent s bank accounts or assets to pay funeral or medical bills. Delay in opening a succession may cause problems. Often, successors waitmany years to open a succession. As a result, they may run into problems suchas lost documents or wills or face tax sales of homes for unpaid taxes. Also, wait-ing too many years to open a succession may make a succession more complicatedand expensive. This is especially true with the passing of generations when theco-heirs lose contact with each other or of Possession in Succession cases are considered prima facie evidence of the rights of the heirs of the Decedent.

7 La. Code of Civ. Proc. The right to assert an inheritance rights is subject to a 30 year prescription,which runs from the decedent s death. See La. Civ. Code art. 3502, 934. After this,the Judgment of Possession would be final and conclusive. However, heirs shouldact quickly to protect their inheritance rights since heir property may be lost iftransferred to a third AND LARGE SUCCESSIONSP rocedurally, many SUCCESSIONS can be handled by the filing of anex partepetition for possession with a district court. If the gross value of the estate atthe decedent s death is less than $75,000, it may be possible to complete the trans-fer of property by recording an affidavit in the public records, rather than filing acourt succession.

8 SeeLa. Code Civ. Proc. art. BASIC LAWS OF SUCCESSIONSS uccessions are either intestate or testate. La. Civ. Code art. occur when the decedent dies without a will, the willis invalid in whole or in part, or the will does not dispose of all of the dece-dent s are called heirs. occur when there is a valid are called legatees. When the succession is intestate, the LOUISIANA Civil Code determines whoinherits the decedent s estate. If the decedent died testate, the will governs whoinherits the decedent s estate, assuming the will is valid. SUCCESSION(792)4. INTESTATE property FOR INTESTATE SUCCESSIONSD etermining who inherits property in an intestate succession involves deter-mining whether the property itself is community or separate under LOUISIANA is a community property state, meaning that most property obtained bymarried persons is considered to be community property and each spouse ownsan undivided one-half (1/2) share in that property .

9 The following community property rules apply to property acquired after1979: property of married persons is either community or separate. La. Civ. Codeart. 2335. property acquired during a marriage is presumed to be community. Code art. 2340. In most cases, property acquired during a marriage will becommunity property . The major exceptions are property acquired by donation orinheritance to a single spouse. That property is the spouse s separate community property regime begins upon marriage and terminates withdeath or divorce. In a divorce, the community property regime is generally termi-nated retroactive to the filing date of the divorce petition upon which the divorcewas granted.

10 This means that the community property converts to separate prop -erty on that date. Sometimes property will be divided between a divorcing couple,either in the divorce proceeding, a separate partition proceeding, or by privateagreement. It is not unusual, however, for divorcing couples to not address prop -erty issues in their divorce. In that case, the divorced spouses continue as co-owners, with each owning a one-half (1/2) undivided share of the formercommunity property , which is now classified as separate property . You shouldinclude the case name, docket number, court and divorce date for any relevantdivorces for inclusion in the succession pleading.