Isabelle Montelepre - Loyola University New Orleans



Isabelle Montelepre

Connie L., Powell, J.D.

Business Law II

21 March 2001

Interstate Succession Laws

Imagine walking into courtroom and having to find that there is no inheritance money waiting because there was no will and constantly hearing the term “intestate” being used frequently in the proceedings. One might begin to wonder why is this happening to me and what does intestate succession mean? Intestate succession is when someone dies without leaving a will. By not leaving a will, the Court then decides how one’s estate will be distributed and who gets what portion of it. The Court appoints an administrator, who decides where the assets will go. However, every state’s succession laws are different. The problem is that many people think that by not making a will that all of their money will go directly to their spouse, but this is not true. There have been situations where distant relatives have received money and the deceased’s spouse was left with nothing. This is why it is very important to leave a will. What is a will? “A will is a document in which a person sets out what is to happen with his assets upon his death” (The Law of Succession-The Wills Act (Introduction)). For a will to be valid there are certain requirements: it must be in writing, it must be signed at the end of every page of the document and must two or more competent witness sign the end of the document in the presence of the testator, if there are any alterations in the will then the will must be signed by the testator and the witnesses again, and if the testator signs the will by just making a mark then a magistrate, justice of the peace, commissioner of oaths or notary public must certify the will at the end of the document. For clarification reasons, a testator is the person making the will. After having said all of this, one would begin to see the importance of making a will.

. After having briefly discussed what intestate succession is, what a will is, and what requirements are needed to make a will valid, it is now time to go deeper into the law of intestate succession and how it applies to Louisiana. “The law of intestate succession regulates the devolution of a deceased estate in those circumstances where the deceased either left no will or the will is invalid” (The Law of Succession-Intestate Succession (Introduction)). There are many different rules that apply to various survivors or descendents to the basic law of intestate succession, for example, surviving spouse, surviving spouse and descendents, surviving descendents only, no surviving spouse or descendents, and other cases. In the case of the surviving spouse, if a person dies intestate and the spouse is still alive, but not a descendent, then, the spouse receives the whole estate. In the case of the surviving spouse and descendents, the spouse will inherit the child’s share of the estate or an amount of $125,000 whichever is bigger. The descendents will inherit the rest of the estate. In the case of the surviving descendent only, “if the deceased is survived by descendents only, and not by a spouse, the children share equally in the estate” (The Law of Succession-Intestate Succession (The Rules of Intestate Succession)). However, if any child died before the deceased that child’s share is then distributes to his or her children. This means that the children take the place of the dead parent. Also, “if a predeceased child leaves no issue who survive the deceased, his share goes to the other children and their descendents”(The Law of Succession-Intestate Succession (The Rules of Intestate Succession)). “Illegitimate children can inherit from their natural parents, unless they are adopted”(The Law of Succession-Intestate Succession (The Rules of Intestate Succession)). Adopted children are thought of as descendents of their adoptive parents and are not descendents to their natural parents; therefore, an adopted child can only inherit from his or her adoptive parents and their ancestors and not from his or her natural parents. In the case of the no surviving spouse or descendents, if the deceased is survived by his parents, they will inherit in equal shares; however, if only one parent survives the deceased, then, the surviving parent only receives one half of the estate. The deceased parent’s share will, then, be distributed to his or her descendents, but in the case of no descendents of the deceased parent, the surviving parent inherits the entire estate. Then, if both the deceased parent’s are dead, half of the estate will go the deceased’s mother’s descendents and half will go to the deceased father’s descendents. If there are no descendents one side, the whole estate will go to the other’s side descendents. In regard to the other cases, if a spouse, descendent, parent, or a descendent of a parent does not survive the deceased, the other blood relatives nearest in degree will inherit equal share of his or her estate. The degrees of consanguinity are as follows: first degree relatives are children and parent, second degree relatives are brothers and sisters, grandchildren and grandparents, and third degree relative are nephews and nieces, great-grand children and great-grand parents. Now it is time to talk about Louisiana intestate succession laws. “If a person dies without a will (“interstate”), the Louisiana Civil Code prescribes the persons (interstate “heirs”) entitled to succeed to decendet’s estate” (The Law of Succession-Intestate Succession (Introduction)).

“In the absence of interstate heirs, the decendet’s property belongs to the State of Louisiana.”

(Hickey 4.12). The three classes of interstate heirs are descendents, ascendants, and other (“collateral”) relations by blood or adoption. The general rules for the Louisiana interstate succession law are as follows: death of decedent, heirs declared unworthy, degrees, representation, and capacity and parent-child relationships. First, the interstate heirs are determined at the time of the decedent’s death or the legal presumption therof meaning if the deceased has been missing for seven year that person is recognized as dead. The interstate heirs may request to have full possession of the decedent’s estate; subject to certain rights should the decedent “come back.” Second, there are justifications for deeming one “unworthy” of the inheritance that would otherwise be eligible on certain extreme grounds, such as attempted murder of the decedent. Third, “generally, where the interstate heirs are members of any of the three classes of relations named above, the specific persons within the class entitled to inherit are those related in the “nearest degree” to the decedent, with each “degree” represented by a generation.” (Hickey 4.12). Fourth, “certain heirs may inherit by “representation” that is, as a representative in the place and degree and with the rights of the person represented. For example, the grandchildren by a predeceased son of a decedent may inherit their father’s share of decedent’s estate by representation of their parent.” (Hickey 4.12). Finally, “generally, all persons, although otherwise without legal capacity (e.g., minors and interdicts) may transmit their inheritance and inherit from others by intestacy, and capacity to inherit is presumed.” (Hickey 4.12). After discussing basically what intestate succession law is and determining what Louisiana’s law is, it is now time to put all this information to use by drafting a will.

Imagining if I were going to die tomorrow without a will, my property would go directly to my parents and be split equally among them, and if they died before me then it would pass to my bother and sister equally, and if they died with my parents, then, my half would go to my mother’s father and half would go to my father’s mother because these are my only surviving grandparents. If only one of my parents survived me then they would only get half of my estate. I would not mind my estate being split up in this way; however, as of today, I might want to give more to my mother than my father because if she ever decided to leave him she would have a little bit of money, and in the case of both of my parents dying before me I would rather see most of my estate go to my little brother for I am scared that he will not be able to support himself. A will in which I planned out would not follow the plan of distribution under Louisiana’s intestate succession laws for all the reasons stated above. After having said this, it is now time to draft a will.

Isabelle Montelepre

Article 1. Declaration

This is my will and I revoke any prior will and codicils.

Article 2. Disposition of my property

2.1 REAL PROPERTY. I give all my real property to my mother, if living; otherwise it shall be equally divided among my siblings who survive me; except as specifically provided below: (specific distribution not valid without signature.)

I leave the following specific real property to the person(s) named:

Paul Montelepre

I will to leave Paul Montelepre all stocks and bonds.

X__________________

2.3 CASH GIFT TO CHARITABLE ORGANIZATIONS OR INSTITUITIONS: I make the following cash gift(s) to the named charitable organizations or institutions on the amount stated. If I fail to sign this provision, no gift is made. If the charitable organization or institution does not survive me or accept the gift, then no gift is made.

The Red Cross Foundation

I will to leave The Red Cross Foundation $10,000.00 in my name.

X___________________

2.4 ALL OTHER ASSETS (MY “RESIDUARY ESTATE”). I adopt only one Property Disposition Clause by placing my initials in the box in front of the letter “A”, “B”, or “C” signifying which clause I wish to adopt. I place my signature after clause “A” or clause “B”, or after individual distribution in clause “C”. If I fail to sign the appropriate distribution(s) or if I sign in more than one clause or if I fail to place my initials in the appropriate box, this paragraph 2.4 will be invalid and I realize that the remainder of my property will be distributed as if I did not make a will.

Property Disposition Clause.

A. I leave all my remaining property to my parents, if living. If not living, then in equal shares to my siblings and the descendents of any deceased sibling.

X_________________

B. I leave the following stated amount to my mother _____________ and the remainder in equal shares to my siblings and the descendants of any deceased sibling. If my mother is not living, that share shall be distributed in equal shares to my siblings and the descendents of any deceased sibling.

X_________________

C. I leave the following stated amounts to the persons named:

Andrea Montelepre __________ X____________________

Catherine Montelepre _________ X____________________

Paul Montelepre __________ X____________________

3.1 GUARDIAN. I have no children.

3.2 CONSERVATOR. Because I have no children, this does not apply to me.

3.3 PERSONAL REPRESENTATIVE. Catherine Montelepre. I nominate the person or institution named as first personal representative below to administer the provisions of this will. If that person or institution does not serve, then I nominate the others to serve in the order I list them. My nomination of a personal representative is not valid without my signature.

First Personal

Catherine Montelepre X_______________

Second Personal

Paul Montelepre X________________

Third Personal

Inez Bucaro X________________

I sign my name to this Louisiana Statutory Will on March 21, 2001 at 4:00 in the State of Louisiana.

March 21, 2001 New Orleans

X______________________

STATEMENT OF WITNESSES

Each of us declare that the person who signed above willingly signed this Louisiana Statutory Will in our presence or willingly directed another to sign it for him or her or that he or she acknowledged that the signature on this Louisiana Statutory Will is his or hers or that he or she acknowledged that this Louisiana Statutory Will is his or hers and we sign below as witnesses to that signing.

X____________

Name

Address

Signature

Now that I have drafted my will and explicitly explained what I want going to who. I hope that one can see why intestate succession is not a very good system because it would have not distributed my estate in such a way that I would have liked; however, the courts do not know the wishes of the deceased and have devised these rules in order to distribute deceased persons’ estates in a just and fair manner. In conclusion, the system is not that bad, if one does not like it, then shut up and make a will.

Bibliography

Hickey, Maunsel. Estate Planning in Louisiana. Lawyers Cooperative Publishing. 1996.

“The Law of Succession-Intestate Succession (Introduction).” succession-Introduction.html

“The Law of Succession-Intestate Succession (The Rules of Intestate Succession).”

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“The Law of Succession-The Wills Act (Introduction).”



“The Law of Succession-The Wills Act (Requirements for a Valid Will).”

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