Louisiana Succession Law

Louisiana Probate Law:

Louisiana Successions

Louisiana has very strict probate and successions laws that control where property goes after someone dies. If there is no will, the state has a will in which certain assumptions are made. The first assumption is that the spouse should not inherit anything from the other spouse if there are children. The next assumption is that for separate property, nieces and nephews should inherit before a spouse. This usually comes as a big surprise to the surviving spouse.

TIP: Avoiding probate. There are situations where probate is not necessary. In Louisiana, probate is not required is there is no will and the estate is under $75,000 in total value. Probate can also be avoided with various estate planning techniques, such as revocable (living) or irrevocable trusts.

Successions in Louisiana are considered either testate or intestate. If the deceased had a will that was probated, then the succession is considered testate. If the deceased did not have a will, then the succession is intestate. With a testate succession, the provisions of a will control most of the dispositions. In an intestate succession, the statutes determine who inherits and in what proportions.

WARNING: This is where a spouse comes up on the short end of the stick. In an intestate succession, the surviving spouse inherits nothing from the estate of the deceased spouse.

What does happen to property when someone dies? There are two things that are looked at first: was the property community or separate; and, what relationship are the survivors to the deceased? Community property is usually property accumulated by a couple while they are married (unless there was a marriage contract). Examples of separate property would be property owned before marriage, inherited property, or property given to one of the spouses. In general, a spouse inherits none of the other spouse’s separate property. A spouse also inherits none of the other spouse’s community property unless there are no children of the marriage.

Can this be changed with a will? Yes, most certainly. A will can specify that a spouse come ahead of other heirs. If there are forced heirs, the forced heirs have to inherit a portion, but the will can provide that the remainder go to the spouse (or anyone else named in the will). The will can also give the spouse a lifetime usufruct over the forced portion. A usufruct is a limited right to the use of a thing. In other words, if you have a usufruct over stock, you would be entitled to the dividends from that stock. A usufruct granted in a will can even be worded to allow the person with the usufruct to sell the stock.

Does all property have to go through probate? Some types of property are not considered part of your estate in Louisiana. Normally, property that is paid directly to a named payee by a third party are not subject to succession laws. For example, any retirement asset, like an IRA or 401(k), would not have to go through probate. It is important, however, to remember to have alternate beneficiaries named on the account. If you name only your spouse and both of you die, the asset would have to go through probate. Proceeds of life insurance are another example of an asset that does not go through probate as long as there is a living named beneficiary.

Do I need a will? A will can do many things. The most important thing a will can do is change the order of succession that Louisiana provides in the absence of a will. A will can also do many other things, for example: 1) name a guardian for minor children; 2) name an independent executor which can save probate costs; 3) create a trust for grandchildren, special needs or spendthrift heirs; 4) for larger estates, make provisions to save estate taxes; 5) remove any doubt as to what you wanted after your death. If none of this is important to you, then you may be satisfied with the “will” that Louisiana has for you.

Comments

  1. gutenbird says:

    This is a scenario I would appreciate an opinion on. A spouse dies soon after the forced heirship law changed taking away older children’s right as forced heirs. The will was written in 1988 when forced heirship was part of the law. The language in the will may indicate that the deceased spouse was aware of this law and had written it thinking his/her children would receive a forced portion. The will says, ” I leave and bequeath the disposable portion of my estate in the greatest amount permitted by law to my spouse.” Permitted by law then or permitted by law now. This will has never been probated because the children allowed their surviving parent to do as he/she wished with all of the assets. Recently a new asset has been discovered that was owned by the deceased spouse’s mother who outlived her daughter. The surviving spouse claims he/she is the sole heir and the children have no rights to any part of their deceased parent’s estate even though this new asset was never owned by either spouse but only the mother of the deceased spouse. It seems that the parent has been afraid of this will and kept it private until recently because he is making a grab for this asset and the children believe they have a stake in it also.

    • As a general comment on complicated questions that aren’t really comments, it is far better to ask questions like this in the Probate area of the Forums where there is a better chance of getting a timely reply.

  2. My Husband died he had a will I didn’t know about my question is we remodel our home because of hurricane we purchase furniture rider lawnmower every thing we purchase together we both put income in purchases I know his dad will his half but could he keep my half of property and is the will good with out opening sucession? his daddy and I worked we were married for seven years.

    • A will is pretty much irrelevant until a court determines that the will is valid and who the proper legatees are.

      As for the property willed to your father-in-law, that would apply to your deceased husband’s half of the community and any separate property he had. You would not lose your half. The expenses after the hurricane sound like they were community expenses that benefited the community, so those assets would probably be jointly owned and part of the community.

  3. Does succession has to be open?

    • That depends. If there is any real estate, then probably.

      If there are any assets that have to be re-titled, like brokerage accounts, then probably.

      If there are total assets worth less than $50,000, then there is a shortcut procedure that involves the heirs signing an affidavit so that no probate (succession) is necessary. This procedure cannot be used if there was a will.

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