SUCCESSIONS IN LOUISIANA - Loyola University New Orleans ...

SUCCESSION

CHAPTER 12

SUCCESSIONS IN LOUISIANA

Paul Tuttle

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About The Author Paul Tuttle in the Managing Attorney of the Title Clearing Project of Southeast Louisiana Legal Services. He has been an attorney with Southeast Louisiana Legal Services since 1996, working in successions, title clearing, public benefits, family, housing and foreclosure law. Since 2006, Mr. Tuttle has focused primarily on succession and title clearing matters that arose out of the Katrina and Rita disasters. He has been a lecturer on succession law. Mr. Tuttle is a 1996 cum laude graduate of Tulane Law School.

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1. INTRODUCTION

In Louisiana, probate law is called succession law. The terms succession and estate are often used interchangeably to refer to the property that the decedent owned at death. This chapter outline discusses Louisiana succession law and procedures for intestate and testate successions.

Sources of Louisiana Probate or Succession Laws

Louisiana probate or succession laws include:

Substantive Probate Law

La. Civil Code art. 870-1429

Probate Procedures

La. Code Civ. Proc. art. 2811 et seq.

Tutorship Procedures

La. Code Civ. Proc. art. 4031 et seq.

Community Property Law

La. Civil Code art. 2325-2437

Treatises and Practice Manuals on Louisiana Probate Law

L. 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 Services

and Pro Bono Desk Manual (2005) Louisiana Probate Laws (West 2012)

2. WHAT IS A SUCCESSION?

"Succession" is transmission of the deceased's estate or rights to his successors. Transfer of ownership to the heirs occurs immediately upon death. La. Civ. Code art. 935. An heir may exercise rights of ownership for his interest in an asset of the estate and the estate as a whole before the qualification of an executor or administrator. La. Civ. Code art. 938. Indeed, many indigent clients will take physical possession of succession property, including immovable property, without completing the succession. Nonetheless, a succession must be opened and completed in order to exercise important legal rights as to the deceased's property.1

The estate of the deceased includes the property, rights, and obligations that he had at death. The estate also includes all rights and obligations that have accrued since death. La. Civ. Code art. 872.

The complexity of a succession depends on the value and type of property involved, the decedent's debts, and whether there is conflict among family members. Often, indigent clients either have never heard of or are unfamiliar with the procedures for opening a succession. They are simply told by the bank, mortgage company or an attorney that they had to "open a succession" before they could have access to the deceased's bank account, obtain a home improvement loan, or cash the deceased's settlement check.

A surviving spouse may use a La. R.S. 9: 1513 affidavit to withdraw up to $10,000 from a checking account, savings account or certificate of deposit.

1 In estates less than $75,000, a simpler succession procedure, called " heirship affidavit", may suffice. See La. Code Civ. Proc. art. 3431-34.

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2.1

WHY IS IT IMPORTANT TO OPEN A SUCCESSION?

A succession is opened to get legal possession of immovable and movable property, and to gain access to bank accounts, pensions or insurance proceeds for the successors. The legal possession of immovable property that results from a

succession will give the successors the power to sell the property, refinance, and qualify for the homestead exemption. In the wake of Hurricanes Katrina and Rita, many successions had to be completed in order for Louisiana homeowners to

access state and federal rebuilding funds

2.2

WHEN SHOULD A SUCCESSION BE OPENED?

A succession should be opened as soon as practicable after the decedent's death. Sometimes, it is necessary to immediately open successions to use the decedent's bank accounts or assets to pay funeral or medical bills.

Delay in opening a succession may cause problems. Often, successors wait many years to open a succession. As a result, they may run into problems such as lost documents or wills or face tax sales of homes for unpaid taxes. Also, waiting too many years to open a succession may make a succession more complicated and expensive. This is especially true with the passing of generations when the co-heirs lose contact with each other or die.

Judgments of Possession in Succession cases are considered "prima facie" evidence of the rights of the heirs of the Decedent. La. Code of Civ. Proc. art. 3062 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 should act quickly to protect their inheritance rights since heir property may be lost if transferred to a third party.

2.3 SMALL AND LARGE SUCCESSIONS

Procedurally, many successions can be handled by the filing of an ex parte petition for possession with a district court. If the gross value of the estate at the decedent's death is less than $75,000, it may be possible to complete the transfer of property by recording an affidavit in the public records, rather than filing a court succession. See La. Code Civ. Proc. art. 3431-3434.

3. BASIC LAWS OF SUCCESSIONS

Successions are either intestate or testate. La. Civ. Code art. 873-876 1. Intestate successions occur when the decedent dies without a will, the will

is invalid in whole or in part, or the will does not dispose of all of the decedent's property.

Intestate successors are called "heirs." 2. Testate successions occur when there is a valid will.

Testate successors are called "legatees." When the succession is intestate, the Louisiana Civil Code determines who inherits the decedent's estate. If the decedent died testate, the will governs who inherits the decedent's estate, assuming the will is valid.

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4. INTESTATE SUCCESSION

4.1

CLASSIFYING PROPERTY FOR INTESTATE SUCCESSIONS

Determining who inherits property in an intestate succession involves determining whether the property itself is community or separate under Louisiana law. Louisiana is a community property state, meaning that most property obtained by married persons is considered to be community property and each spouse owns an undivided one-half (1/2) share in that property.

The following community property rules apply to property acquired after 1979:

Property of married persons is either community or separate. La. Civ. Code art. 2335. Property acquired during a marriage is presumed to be community. La. Civ. Code art. 2340. In most cases, property acquired during a marriage will be community property. The major exceptions are property acquired by donation or inheritance to a single spouse. That property is the spouse's separate property.

The community property regime begins upon marriage and terminates with death or divorce. In a divorce, the community property regime is generally terminated retroactive to the filing date of the divorce petition upon which the divorce was granted. This means that the community property converts to separate property on that date. Sometimes property will be divided between a divorcing couple, either in the divorce proceeding, a separate partition proceeding, or by private agreement. It is not unusual, however, for divorcing couples to not address property issues in their divorce. In that case, the divorced spouses continue as coowners, with each owning a one-half (1/2) undivided share of the former community property, which is now classified as separate property. You should include the case name, docket number, court and divorce date for any relevant divorces for inclusion in the succession pleading.

Louisiana community property laws apply to spouses domiciled in Louisiana regardless of their domicile at time of marriage. La. Civ. Code art. 2334.

Immovable property in Louisiana is generally governed by Louisiana law regardless of the acquiring spouse's domicile at time of acquisition. La. Civ. Code art. 3524. The nature of immovable property in another state acquired during the marriage is determined by reference to the Louisiana Civil Code Articles on Conflicts of Law, Articles 3523 et al.

Community property includes: ? property acquired during the marriage through work or effort of either spouse or with community property or with community or separate property ? property donated jointly to the spouses ? fruits of community property ? fruits of separate property (Civ. Code art. 2339) ? damages awarded for loss of community property ? all other property not classified by law as separate property.

See La. Civ. Code art. 2338.

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