When a child you love has inherited property in a Louisiana succession, the property may benefit the child financially for many years to come. But if the child is under the age of 18 and has no trust or trustee, it’s important to understand what happens to the property until the child turns 18.
The Role of a Tutor
The child’s tutor, also known as a guardian in other states, is legally responsible for overseeing and managing the property until the minor child becomes an adult. In Louisiana, there are four forms of tutorships that are typically appointed in the following order of priority:
- Natural tutorship. If one or both of the child’s parents are living and retain parental rights, they are the child’s tutor.
- Tutorship by will. If both parents died, the tutor named in the last surviving parent’s will is the child’s tutor if that person is willing to take on this responsibility.
- Tutorship by effect of law. If both parents died without naming a tutor who is willing to serve in this role, the court will decide on a tutor. Typically, the tutor will be a close relative such as a grandparent, aunt, or uncle.
- Dative tutorship. If both parents died without naming a tutor and there is no close relative who is willing or able to serve, the court may name an unrelated person to be the child’s tutor.
The child’s tutor has many responsibilities to care for the child’s health, education, and welfare. When it comes to inherited property, the tutor must be prudent in managing the property. If the tutor does not manage the property appropriately, a judge may require a change in tutorship to protect the child.
If You Have Questions About a Minor Child’s Inheritance
Our Louisiana succession lawyers are here to help you protect the child you love. Contact us at any time for help. We will do everything we can to make things as easy as possible during this difficult time for your family.
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The tutorship system provides legal management for a minor child’s inheritance, but tutors are subject to court oversight requirements that can be burdensome. Many Louisiana families prefer to leave property to minor children through a trust rather than outright, allowing a trustee to manage the assets according to specific terms without the same court supervision required of a tutor. A trust can also specify that distributions continue past the child’s 18th birthday if the parent wants additional time before the child has full control of the inheritance. If you are doing estate planning and have minor children, discussing trust options with a Louisiana estate planning attorney is worthwhile. Contact Scott Law Group at (504) 264-1057 to learn about options for protecting a child’s inheritance. This article provides general information about Louisiana succession law and is not legal advice for your specific situation. When a parent dies in Louisiana, what a child inherits depends on several overlapping legal doctrines. Whether the child was born inside or outside of marriage no longer affects succession rights — Louisiana law equalized inheritance rights for all children in 1981. What matters instead is the type of property involved, whether the decedent left a will, and whether the child qualifies as a forced heir. Community property — the half of marital assets belonging to the decedent — passes through the succession. If there is no will, Louisiana intestate succession laws direct that property to the decedent’s descendants. Separate property owned solely by the decedent is also distributed through the succession according to the will or intestate rules. If the surviving spouse had a usufruct right — either by law over the decedent’s community property share or by will over other assets — the children typically receive the naked ownership while the surviving spouse holds the right to use and enjoy the property during their lifetime. Children under age 24 and children of any age who are permanently incapacitated are forced heirs under Louisiana Civil Code articles 1493 through 1495. A forced heir cannot be entirely disinherited — they are entitled to a minimum share of the estate called the légitime. One forced heir is entitled to one-quarter of the estate; two or more forced heirs are entitled to one-half collectively. A parent can disinherit a forced heir only for one of twelve specified statutory causes, such as striking the parent or being convicted of a serious crime against the family. Louisiana law does not allow minor children to own or manage significant property without court oversight. When a minor inherits real estate or substantial assets, the surviving parent typically becomes the child’s tutor — the legal guardian of the child’s property — under Louisiana Code of Civil Procedure articles 4031 through 4100. The tutor must post a bond, file annual accounts with the court, and obtain court approval before selling, mortgaging, or making major decisions about the child’s inherited property. This process is designed to protect the minor’s interests but adds expense and administrative burden. A testamentary trust for minors is often a better solution. A parent can create a trust in their will that holds the child’s inheritance until a specified age — 25, 30, or even older — managed by a trustee of the parent’s choosing. The trust can give the trustee discretion to distribute funds for education, health, and support without requiring court approval for each expenditure. The trust avoids the tutorship regime entirely and provides far more flexibility than court-supervised management of inherited assets. Even when the child is an adult, inheriting property raises practical questions. A child who inherits alongside siblings becomes a co-owner, and all co-owners must agree to sell or encumber the property. If co-heirs disagree on what to do with inherited real estate, any co-owner can file a partition action to force a division or court-supervised sale. This right to partition is absolute under Louisiana Civil Code article 807 — no co-owner can be compelled to remain indefinitely in a co-ownership they don’t want. Louisiana abolished its state inheritance and estate taxes in 2004, so children who inherit from Louisiana estates owe no state-level death taxes. The federal estate tax applies only to estates over $13.61 million (2024 figure), so most families are not affected. What does affect most children who inherit property is the federal income tax concept of stepped-up basis. When a child inherits appreciated property — a house the parent bought for $100,000 that is now worth $400,000, for example — the child’s tax basis in the property is “stepped up” to the fair market value at the date of death: $400,000. If the child later sells the property for $400,000, there is no capital gains tax owed, because the gain is measured from the stepped-up basis, not the original purchase price. This is one of the most significant tax benefits of inheriting rather than receiving property as a lifetime gift. For community property, the step-up can be even more favorable. When one spouse in a community property state like Louisiana dies, both halves of the community property — the decedent’s half and the surviving spouse’s half — receive a full step-up in basis. This means the surviving spouse’s inherited or retained community property also gets the basis adjustment, potentially eliminating substantial capital gains on a future sale. Proper documentation of the community or separate character of assets is essential to capturing this benefit. |