Question 1

Ancillary Succession in Louisiana

Accepted Answer

We have opened a probate for my dad in Mississippi that is pending. There is, however, real estate that he owned in Louisiana at the time of his death. The lawyer handling the probate said the property in Louisiana can&rsquo;t be handled in the Mississippi probate and we need to get a lawyer in Louisiana to handle it. What do we need to do?

About Ancillary Succession

A succession in Louisiana will be needed in order to transfer the Louisiana real estate from your dad to his heirs. The procedure is known as an ancillary succession proceeding.



Louisiana law provides that when a non-resident dies and owned property in Louisiana, that a succession can be opened here in Louisiana to transfer ownership of the property. In order for the succession representative in the Mississippi succession proceeding to act with respect to the property, however, it will be necessary for him or her to qualify to do so in the Louisiana court where the ancillary succession will be filed.



If your father had a Last Will and Testament that has already been probated in the Mississippi succession, Louisiana law permits you to present a copy of the probated will and the Louisiana court will allow the will to have the same force and effect as the original probate of a domestic will.

How We Can Help

Ancillary succession proceedings are usually pretty simple to conduct and can be opened and completed sometimes within as little as a few days if necessary. Contact our office to get started today.

Question 2

Accessing a Deceased Parent’s Safe Deposit Box

Accepted Answer

The loss of a parent can be devastating. When you are grieving, you may not have the time or energy to process your own emotions&mdash;let alone deal with your parent&rsquo;s outstanding legal affairs. However, when a loved one passes away, the state expects their family or appointed executive to initiate probate proceedings. You may have to collect, inventory, and appraise your parent&rsquo;s possessions, including those that are not already inside their house. If your mother or father had a safe deposit box, you may also have to secure its contents. 
While Louisiana affords certain people the right to access a deceased person&rsquo;s safe deposit box, you will have to follow specific procedures to ensure access.
The Significant of Safe Deposit Boxes
People use safe deposit boxes for a variety of reasons. They are often used to store:

Cash currency
Bonds
Jewelry
Important legal documents

Whenever a Louisiana resident passes away, these valuable possessions must be inventoried and appraised as a part of probate proceedings. If your parent wrote a will, they may have already appointed an estate representative to settle their estate.
However, if your parent did not name an estate representative&mdash;or they nominated you for their role&mdash;you may be tasked with accessing their safe deposit box. This could be critically important, especially if you have reason to believe their will, trust document, or other estate planning documents are stored there.
Accessing a Louisiana Safe Deposit Box
If your parent had a comprehensive estate plan, they should have named someone as an heir or beneficiary to its contents.
However, many people do not account for their own death when they rent a safe deposit box. While you might be the rightful heir to your parent&rsquo;s possessions, Louisiana law permits banks to treat customer property in accordance with their contract until they have received evidence that the account holder has passed away.
In order to access the safe deposit box, you must:

Initiate probate proceedings. If you have been tasked with initiating probate, you must do so in accordance with Louisiana&rsquo;s probate timeline. Once you have informed the court of your parent&rsquo;s death and started the probate process, you can obtain the paperwork needed to access the safe deposit box.
Petition the probate court for paperwork. If you have been appointed the estate representative, you must secure letters testamentary, letters of administration (for someone who died without a will), or letters of independent administration from the probate court. Each of these documents serves a similar purpose, in that they grant an estate representative the authority to access and take control of a deceased person&rsquo;s assets.
Contact the bank. Once you have obtained the required paperwork, you are entitled to retrieve assets from the safe deposit box. You may also wish to write a letter to the bank informing them of your parent&rsquo;s death. This may expedite the time it takes for the bank to allow you access to their safe deposit box.

Why You May Need an Attorney&rsquo;s Help
While the process of accessing a deceased parent&rsquo;s safe deposit box may appear simple on paper, Louisiana&rsquo;s probate courts might demand evidence that you are entitled to act as an estate representative. Obtaining such evidence could be difficult&mdash;especially if your parent&rsquo;s will is inside a safe deposit box you cannot access.
A Louisiana succession attorney could guide you through the process, helping you get the paperwork you need to access the safe deposit box. We can also help you resolve your parent&rsquo;s estate by:

Assuming the role of estate representative
Initiating probate
Gathering, inventory, and appraising your parent&rsquo;s assets
Paying any outstanding estate debts and taxes
Distributing gifts to heirs and beneficiaries
Closing the estate and finalizing the probate process

Contact Us Today
Losing a parent can be difficult, especially when you have been tasked with settling their affairs. You will have to meet many different deadlines&mdash;and if you miss one, you could be held financially liable by the beneficiaries or even the creditors.
You do not need to shoulder the responsibility of acting as their estate representative by yourself. The attorneys at Scott Law Group - Estate Counsel have decades of experience helping Louisianans navigate the complexities of probate. Send us a message online to get started on your case today.




Related links:

After a Parent Dies: Your Legal Questions Answered
Estate Issues If Your Parent Created a Will Without a Lawyer
What to do With Your Deceased Parent&rsquo;s Unpaid Credit Card Debt

Question 3

Access to a Bank Account or Wages After a Loved One&#8217;s Death

Accepted Answer

In the days after a spouse or parent dies, most families face an immediate practical problem: bills still come due, funeral costs need to be paid, and the bank accounts holding the money are frozen the moment the bank learns of the death. Louisiana law provides three specific statutes that let surviving family members get limited amounts of money out of a decedent's accounts quickly &mdash; without waiting for a full succession to be completed.

This page walks through each of those statutes in practical detail: who qualifies, how much money you can access, what affidavit you need, and the common problems families run into when they try to use these procedures. If you're in the first week after a loved one's death and trying to figure out how to pay the funeral home, this is the answer.

The three statutes in brief

Louisiana provides three distinct legal tools for immediate access to a decedent's money:

La. R.S. 9:1513 &mdash; The surviving spouse may withdraw up to $10,000 from bank accounts in the decedent's name, whether the account is held jointly or solely by the decedent.
La. R.S. 6:315.1 &mdash; When the decedent died without a will (intestate), the surviving spouse and heirs may collectively withdraw up to $5,000 from a bank account in the decedent's name.
La. R.S. 9:1515 &mdash; The surviving spouse and children may receive up to $6,000 in unpaid wages from the decedent's employer.

These three procedures are separate and can sometimes be used in combination. They do not require opening a succession. They do not require court approval. Each requires a specific affidavit and each has its own qualifying conditions.

Procedure 1: Surviving spouse &mdash; up to $10,000 (La. R.S. 9:1513)

This is the most widely used immediate-access procedure in Louisiana. Any surviving spouse of a decedent &mdash; regardless of whether the decedent left a will &mdash; may withdraw up to $10,000 from bank accounts using a sworn affidavit.

Who qualifies

Only the surviving spouse. Not the children, not other relatives. The spouse must have been legally married to the decedent at the time of death (a separated-but-not-divorced spouse still qualifies).

What accounts are covered

Accounts in the decedent's name alone, or accounts held jointly in the names of the spouses. Accounts held by the decedent with other people (a child, for example) are not covered by this statute.

What the affidavit must say

The affidavit is presented to the bank by the surviving spouse. It must include:

The full name of the decedent and the date of death
The full name of the surviving spouse
A sworn statement that the total amount withdrawn from all accounts under this procedure does not exceed $10,000
A sworn statement that the surviving spouse is aware they may be required to account for the funds in any subsequent succession

The affidavit must be notarized. Many banks provide their own standardized affidavit form for this purpose &mdash; ask the branch for their "survivor affidavit" or "small estate withdrawal" form.

Important limitations

The $10,000 is a cumulative cap across all accounts at all banks, not a per-bank limit. If you withdraw $7,000 from Bank A using this procedure, you can only withdraw $3,000 more using this procedure from any other account.

The funds withdrawn are still part of the decedent's estate for accounting purposes. When a full succession is eventually opened, the amounts taken under this statute are credited against the spouse's ultimate distributive share.

What this procedure does NOT do

It does not transfer ownership of the account. It's just an immediate-access mechanism. The rest of the money in the account remains frozen until a succession is completed or a small succession affidavit is executed. If you withdraw $10,000 but the account has $80,000 in it, the remaining $70,000 is not available under this procedure.

Procedure 2: Intestate heirs &mdash; up to $5,000 (La. R.S. 6:315.1)

This is a less-commonly-used procedure because it requires the decedent to have died without a will.

Who qualifies

The surviving spouse and the intestate heirs. They must act together (jointly) &mdash; the money is released collectively, not individually.

When it applies

Only when the decedent left no valid will (intestate). If there is any will at all, even one that doesn't cover all the assets, this procedure is generally not available.

What the affidavit must say

The affidavit presented to the bank must establish:

The identity and date of death of the decedent
That the decedent left no will (jurisdictional statement)
The names and relationships of the surviving spouse and heirs
A request for release of funds up to $5,000

Why this procedure is used less often

For an intestate decedent with a surviving spouse, the spouse can usually use the $10,000 procedure under La. R.S. 9:1513 instead, which is better. This $5,000 procedure is useful primarily when:

The decedent had no surviving spouse (only children or other heirs)
The surviving spouse has already exhausted their $10,000 under the other statute and more is needed

Procedure 3: Unpaid wages &mdash; up to $6,000 (La. R.S. 9:1515)

This procedure is specific to wages owed by an employer, not to bank accounts.

Who qualifies

The surviving spouse and children of the deceased employee.

What's covered

Wages earned by the decedent but not yet paid at the time of death. This can include salary, commissions, vacation pay, and other earned compensation. Total is capped at $6,000.

What the affidavit must say

The affidavit is presented to the decedent's employer. It must state:

The name and address of the decedent employee
The date and place of death
The relationship of the person requesting payment
The name and address of the surviving spouse and children (if any)
Any additional information the employer reasonably requires

Employers often have their own form. Some HR departments will require a certified death certificate in addition to the affidavit.

What a typical first-week timeline looks like

Here's how these statutes typically get used in a practical timeline after a death:

Day 1&ndash;3: Order 10+ certified death certificates from the parish recorder or Louisiana Bureau of Vital Records. Begin gathering financial documents.

Day 3&ndash;5: Funeral arrangements are being made. The funeral home typically wants payment or a signed agreement to pay.

Day 5&ndash;7: Prepare and notarize the appropriate affidavit (your attorney can do this for you; some banks provide their own). If the decedent was employed, contact HR about any unpaid wages.

Day 7&ndash;14: Present the affidavit to the bank. Most banks process the withdrawal in 24&ndash;72 hours once the affidavit is received. The funds can then be used to pay funeral expenses and other immediate bills.

Day 14+: Begin assessing whether a small succession or full succession is needed for the remaining assets.

The immediate-access procedures are designed to bridge the gap between the death and the eventual succession. They're not a substitute for the succession itself &mdash; they just prevent the family from being stranded financially in the intervening weeks.

Common problems and how to solve them

"The bank won't accept my affidavit"

This happens for several reasons:

The bank has its own form and prefers you use it. Ask.
The affidavit is missing a required element. Your attorney can fix this.
The branch manager is unfamiliar with the statute. Louisiana banks must accept properly-executed affidavits under these statutes. Ask the branch to escalate to their legal or compliance department.
The account is held in a form that doesn't qualify (for example, a trust account in the decedent's name as trustee for someone else &mdash; those don't qualify).

If a bank flat-out refuses a facially valid affidavit, an attorney letter citing the statute usually resolves it within a day or two.

"The decedent had a safe deposit box"

Louisiana has separate procedures for access to safe deposit boxes after death, not covered by the statutes above. Generally, a surviving spouse or other authorized person can get limited access to the box in the presence of a bank officer to retrieve specific items (wills, burial instructions), but taking contents of the box requires either succession or specific court authorization. Speak with a succession attorney before accessing the box.

"The account has a lot more than $10,000 in it"

The immediate-access statutes only cover a small cap. If the decedent had an account with $80,000 and there's no POD/TOD beneficiary, the $10,000 withdrawal is all you can get this way. The remaining $70,000 requires either a small succession affidavit (if the total succession estate is under $125,000) or a full succession judgment of possession.

"I'm not married to the decedent, but we lived together for years"

Louisiana does not recognize common-law marriages (with very narrow exceptions for marriages established in other states before moving to Louisiana). A long-term unmarried partner is not a surviving spouse and cannot use La. R.S. 9:1513. This is a painful finding for many clients &mdash; and a reason unmarried couples who are financially intertwined should have estate planning in place.

"The decedent named me on the account as a 'joint owner' years ago"

If the account was structured as a true joint account with rights of survivorship, you may simply take ownership as the surviving joint holder &mdash; no affidavit required. But "joint" accounts in Louisiana are often actually convenience accounts where the decedent's money remains their own, and death doesn't automatically transfer ownership. The bank can tell you which type the account is.

"We haven't agreed on how to split the estate"

Disagreements among heirs can complicate immediate-access withdrawals. The surviving spouse can still use the $10,000 procedure regardless of what other heirs think (it's their right, not a collective decision). The $5,000 heirs' procedure generally requires the heirs to act together, so disagreements can block it.

What happens to the withdrawn money?

Funds withdrawn under these statutes are not "yours to keep" in an absolute sense. They are part of the decedent's estate, and when a full succession is eventually opened (if one is required), the amounts withdrawn will be accounted for as advances against the person's share.

In practice, for most families, this matters very little &mdash; the surviving spouse is usually the principal heir of the community property anyway, and the withdrawn funds are applied against their ultimate share without issue. But if the estate is contested or if other heirs have significant interests, the withdrawals need to be tracked and accounted for.

Moving beyond the immediate-access statutes

Once you've used the immediate-access procedures to cover urgent costs, the next step is determining whether the remaining estate requires a succession.

If the remaining estate is under $125,000 (excluding assets that transfer automatically), a small succession affidavit is usually enough to handle the rest. See our library article on small succession affidavits and judicial administrations.

If the estate is over $125,000 or if there's a will that needs to be probated, you'll need a full succession. Our FAQ on when a succession is required helps you determine which path applies.

Frequently asked questions

Can I use all three statutes together?

Sometimes. If the decedent was intestate, was married, and was employed at death, the surviving spouse could potentially access:

$10,000 under La. R.S. 9:1513
$5,000 collectively with heirs under La. R.S. 6:315.1 (though this is usually redundant when the spouse can use the $10K procedure)
$6,000 in unpaid wages from the employer under La. R.S. 9:1515

Total potential: up to ~$21,000 without a succession. Realistic total for most families is lower, because the statutes don't fully stack in all circumstances.

How long does it take to get the money?

Once the affidavit is prepared and notarized, most banks process the withdrawal within 24&ndash;72 hours. Employers can be faster or slower depending on payroll cycles &mdash; typically within one pay period.

Do I need an attorney to use these procedures?

Not legally required. Practically, most families use an attorney because the affidavits have specific requirements and a mistake can cause the bank to reject the request. An attorney-prepared affidavit is usually worth the small cost to avoid delay.

What if the decedent had multiple bank accounts at multiple banks?

The $10,000 cap is cumulative across all accounts at all banks. You'd present the same affidavit (or a revised one) at each bank, and the bank would release funds up to the remaining cap. Most attorneys recommend going to the bank holding the largest account first to maximize usage.

What if the decedent lived in another state but had a Louisiana bank account?

Louisiana's procedures apply to accounts held at Louisiana banks regardless of where the decedent lived. A surviving spouse of an out-of-state decedent can use La. R.S. 9:1513 for the Louisiana account, though an ancillary Louisiana succession may still be required for other Louisiana property.

Can I use these procedures to pay non-funeral bills?

The statutes don't restrict how the funds are used. Most families use them for funeral costs first, then for essential bills (utilities, the decedent's final rent or mortgage, etc.). The surviving spouse isn't legally required to use the funds for specific purposes.

If you need help preparing an affidavit for immediate access to a decedent's funds, or if a bank has refused a facially valid affidavit, contact Scott Law Group - Estate Counsel or call us at (504) 264-1057. We can usually prepare and notarize an affidavit within a day or two, and we know the common bank-specific variations that come up in Louisiana.

This article provides general information about Louisiana succession law and is not legal advice. Specific situations should be reviewed with a qualified Louisiana attorney.

Question 4

Creating a Digital Estate Plan in Louisiana

Accepted Answer

We live in an increasingly digital world. Ten years ago, few Americans knew much about cryptocurrencies and virtual wallets. Today, thousands of people have made fortunes off their digital assets. However, even Bitcoin millionaires often make the mistake of leaving their legacies unprotected. While the law is still adapting to the age of the internet, recent legislation makes it easier than ever to protect your virtual estate, no matter its size or worth. 

Taking Stock of Your Digital Estate

You do not need to be a cryptocurrency investor to have a digital estate. If you use social media&mdash;whether it is Instagram, Facebook, or Snapchat&mdash;you already have virtual assets.

In fact, any content that is stored in your phone, on your laptop, or in a cloud server could be considered a digital asset.

Your digital estate could include:


 Online bank accounts
 Social media accounts
 Personal blog or digital journal
 Email account
 Photographs and video stored in a cloud server or digital drive
 YouTube channel
 E-commerce profile
 Cryptocurrency wallet


Even if your digital estate does not have a monetary value, you might still want your family members to take control of your virtual assets once you pass away. By assuming control of your accounts, they could moderate automated content, create a memorial post, or inherit your investments.

Digital Estate Planning Demands Modern Solutions

Louisiana law is always changing. However, legislators and policymakers are still trying to understand how digital assets can fit into traditional estate plans. This disconnect&mdash;between decades-old guidance and the realities of the present day&mdash;can present unexpected challenges for anyone trying to secure their estate.

Many social media platforms, for instance, have terms and conditions that prohibit them from handing over a user&rsquo;s account details&mdash;even if the user has passed away, and their relative is trying to access an asset they are supposed to inherit. In this way, modern estate plans need to account for modern challenges.

The Different Approaches to Digital Estate Planning

Some states, like California, have already introduced and enacted digital estate laws.

While Louisiana is still developing more legislation, residents of the Bayou State still have options. The two most fundamental approaches to digital estate planning are:


 The Inventory Model. Someone who holds limited digital assets&mdash;such as a handful of social media accounts or a single, low-value cryptocurrency wallet&mdash;could simply &ldquo;inventory&rdquo; their estate by listing their assets such as account usernames, passwords, and document instructions. This inventory could be included as an addendum to a will and be entrusted to a special digital estate executor. However, digital inventories are not ideal for everyone, especially people who spend a lot of time with technology and may not have the time, resources, or energy to document all of their holdings.
 The Trust Model. Some digital assets such as cryptocurrency can be transferred into the control of a trust. A revocable living trust, for instance, allows an individual founder&mdash;or trustor&mdash;to transfer digital, physical, and financial assets into the trust. While the trustor is still alive, they can exercise limited control over their assets and set conditions for how these assets should be distributed when the trustor dies. A trust model for digital estates should be considered by anyone who values their online profile, owns significant assets, or is a beneficiary to revenue-generating content.


Both the Inventory Model and Trust Model have distinct advantages and disadvantages. Many Louisianans with complex digital estates may need professional assistance in creating a succession plan that accounts for the intricacies of virtual property&mdash;from protecting the keys to a cryptocurrency wallet to understanding how platform terms of service could affect transfers of ownership.

Contact Us Today

Estate plans are supposed to be comprehensive. If you are trying to create an estate plan from scratch or have not yet accounted for digital assets in your existing will or trust, you&mdash;and your loved ones&mdash;could reap significant financial rewards by taking your first steps to protect your digital estate.

However, the complexity of Louisiana&rsquo;s existing laws can make digital estate planning difficult. To ensure your legacy remains safe, consult an attorney who has the experience you need to keep both your physical and digital assets safe. Send us a message online to schedule your consultation today.


 
 
 
 Related links:

 
 Estate Planning Mistakes You Don&rsquo;t Want to Make
 Things to Discuss With a Succession Lawyer Before Hiring One
 When should I create my Louisiana will?

Question 5

Court Decisions When a Will Conflicts

Accepted Answer

After your parent, spouse, child, or other loved one dies, you may read their will and notice that there are conflicting clauses that make portions of the will seem contradictory or unclear. Because there&rsquo;s no way to carry out your loved one&rsquo;s wishes in both clauses, you probably won&rsquo;t know which clause to follow or whether the inconsistencies impact any other parts of the will. 

The potential heirs and legatees will likely have different opinions about what to do with the property impacted by the conflicting clauses, but Louisiana law addresses what will happen if different parts of your loved one&rsquo;s will conflict.

How to Interpret a Will With Conflicting Clauses

Article 1615 of the Louisiana Civil Code provides two rules for interpreting conflicting clauses within a will. According to the law, when a last will and testament has contradictory provisions, the last provision written prevails and should be followed unless the will contains a legacy of a collection or a group of objects and also a legacy of some or all of the same objects. In that case, the legacy of some of all of the objects prevails.

Protect Your Inheritance by Knowing Your Legal Rights

Conflicting clauses in your loved one&rsquo;s will likely make the status of your inheritance uncertain. However, you may not want to fight with other potential heirs to ensure you inherit what your loved one intended you to have. Accordingly, we encourage you to contact our experienced Louisiana estate litigation lawyers to learn more about your rights. Each year, we help hundreds of Louisiana families with their succession needs, and we are prepared to help you.

Our attorneys will thoroughly review every aspect of your case, advise you of your legal rights, and represent your interests in court. We invite you to schedule an initial consultation by calling us or completing our online contact form.


 
 
 
 Related links:

 
 What a Louisiana Court Will Consider When Interpreting a Contested Will
 Contesting a Will in Louisiana

Question 6

Contesting a Parent&#8217;s Will That Has a No Contest Clause

Accepted Answer

The first thing that you should do is to contact an experienced Louisiana estate litigation lawyer. An attorney can help sort out the often complicated legal aspects of being left out of a parent's will that also contains a no contest clause.  

Why a No Contest Clause Is Relevant

A no contest clause prevents an heir from inheriting anything if the heir contests the will. However, the terms of a no contest clause may vary from will to will. For example, the will may refer to "named legatees," which refers to people specifically named in the will; or it may cite "heirs," which may include potential heirs not specifically named in the will. Typically, the courts will interpret the no contest clause as written. Other evidence of the testator's intent may only be presented if the language of the will is ambiguous.

You May Have Inheritance Options

An attorney will carefully examine all aspects of your mother's will, other testamentary documents, and Louisiana law to determine if there is a pathway to your inheritance. For example:


 The language of the no contest clause may allow you to contest the will and inherit from your mother.
 You may be a forced heir. In Louisiana, a child under the age of 24 or who is physically or mentally incapacitated to the extent that they cannot care for themselves is a forced heir unless an exception to the law applies. A forced heir may not be denied an inheritance.
 Your mother may have provided for you through a trust, life insurance policy, or other means.
 There may be other legal strategies that your attorney identifies and uses to help you get the inheritance you deserve.


We encourage you to contact our Louisiana estate litigation attorneys as soon as possible to find out how we can help you protect your rights. It is often easier and more cost-effective to resolve disputes before a succession is settled. Each year, we help hundreds of heirs throughout Louisiana, and we are here to provide you with the honest case review you need to move forward.


 
 
 
 Related links:

 
 Contesting a Will in Louisiana
 What are the grounds for challenging a will in Louisiana?

Question 7

Contents of a Judgment of Possession

Accepted Answer

The Judgment of Possession is the legal document that allows heirs to formally take possession of property at the end of the succession process. In some cases, you may need to go before a judge to get a Judgment of Possession. In other cases, a judge may sign a complete Judgment of Possession on the day a succession is opened. Either way, however, the Judgment of Possession must contain the right information before the court will approve it. 

What to Include in a Judgment of Possession

To avoid confusion and to provide certainty, the Judgment of Possession must contain specific information, including:


 A list of all of the estate&rsquo;s assets. For real property, this should include the legal description of the property.
 A list of all successors. This list should include the proportion of the property that each successor will inherit.
 All usufructs that exist. A usufruct is the right of a person to use property for that person&rsquo;s lifetime only. It is similar to the concept of a life estate in other states.
 An order from the judge, if the person died with a will.
 The last known address of at least one heir or legatee.


Completed Judgments of Possession must be filed in the Conveyance Office of each Louisiana parish where any real estate is located. If property is located in Orleans Parish, there are additional filing requirements.

Contact a Louisiana Succession Lawyer

The experienced Scott Law Group of Scott Law Group represent hundreds of families in successions each year. We can help you avoid problems drafting a Judgment of Possession and other succession pleadings, so your loved one&rsquo;s wishes are honored and you have the certainty you deserve when a succession is over.

We invite you to browse our other FAQs and read our library articles and blogs. To learn more, contact us directly with a phone call or by filling out the contact form on this page to set up an individual meeting.


 
 
 
 Related links:

 
 When a Loved One Dies With Property in Multiple Parishes
 Starting the Succession or Probate Process in Louisiana
 How a Lawyer Can Help With Louisiana Succession Papers

Question 8

Capacity to Inherit in Louisiana

Accepted Answer

A potential heir needs to meet only one qualification to inherit property in a Louisiana succession. The heir must exist at the time of the decedent&rsquo;s death. 
What Does it Mean to Exist?
Anyone living at the time of the decedent&rsquo;s death, exists. In most cases, this is an easy standard to interpret. When there are disputes, the conflicts typically arise over unborn children.
According to Louisiana law, a child conceived by the decedent before death who is later born alive is considered to have existed at the time of the decedent&rsquo;s death and may inherit property from a parent&rsquo;s estate.
Additionally, Louisiana law allows some children conceived after the death of a parent to inherit property. These cases are limited, however. If no law exists to the contrary, a child conceived after the death of the parent has the capacity to inherit property in a succession case if:

The decedent provided written authorization to the surviving spouse that allowed the spouse to use the decedent&rsquo;s gametes
The child is born to the surviving spouse within three years of the decedent&rsquo;s death

Sometimes the capacity of unborn or not yet conceived children is contested by other heirs or potential heirs to the estate.
Three Things That Will Not Prevent an Inheritance
The word &ldquo;capacity&rdquo; may confuse the issue of an inheritance. For example, age, mental capacity, and disability may interfere with a person&rsquo;s ability to understand or manage their own inheritance, but these things will not prevent a person from inheriting property in a Louisiana succession.
Make Sure the Right Heirs Inherit the Right Property
Whether you are an executor, administrator, heir, or representative of a child or another potential heir, you have an interest in making sure the right people get the right inheritance in a Louisiana succession case. Our experienced team at Scott Law Group - Estate Counsel can review the succession case, help you identify heirs, and make sure that the succession case is handled correctly. Call us or complete our contact form today to schedule your initial meeting.




Related links:

Starting the Succession Process in Louisiana
When an Heir Dies Before Inheriting Property in an Intestate Succession
What Happens When an Intestate Heir Is Missing

Question 9

Avoiding Delays in a Louisiana Succession

Accepted Answer

Louisiana has a unique legal system with special procedures governing the dissolution of estates and the disbursement of inheritances. Compared to most other states, a Louisiana succession is likely to be a long, drawn-out, and time-consuming affair, with proceedings likely to last at least several months. While the Bayou State offers simplified probate for some estates, any case involving a home or other high-value real estate has the potential for complication. 
Estimating Your Estate Succession Timeline
Succession, or probate, is the formal process of dissolving a deceased person&rsquo;s estate. Under most circumstances, probate requires that an appointed personal representative inventory the estate&rsquo;s assets, pay its creditors, and distribute inheritances to designated heirs.
Some people use revocable living trusts and other strategies to avoid succession in its entirety. However, in the absence of any comprehensive estate plan, most estate assets must be distributed in accordance with the Bayou State&rsquo;s succession laws.
Every succession is unique, and there is no uniform timeline for completion. A simple succession could be resolved in a matter of weeks, while others may take the better part of a year. If an heir disputes their inheritance, or the estate is subject to any unforeseen tax complications, probate could take significantly longer. The length of succession could be dependent on many factors.
Information Sharing
Probate is a time-sensitive process, and executors must work quickly to initiate succession if they wish to stay in compliance with Louisiana state law. However, the executor or the estate&rsquo;s attorney may need additional time to locate relevant assets and notify potential heirs of proceedings. 
Joint Collaboration
Successions typically take less time when the heirs are in agreement about the terms of a will or living trust. Disputes and contests can significantly impede the probate process since certain steps cannot be completed until challenges are resolved.
Deadline Adherence
Louisiana requires that many probate-related documents be signed and notarized by pre-specified dates. Delays are likely if some interested parties are not immediately available.
Bureaucratic Delays
A succession should be initiated in the district court of the parish where the deceased person lived. However, different courts can have significantly different workloads.
Once the court receives a petition to begin probate, the Clerk of Court must process the paperwork and assign it to a judge. However, judges are frequently overworked, and they may have an extensive backlog of cases.
Paperwork Accuracy
Making a paperwork mistake, or missing a deadline, could lengthen succession proceedings.
Speeding up Your Louisiana Succession
Probate can be a time-consuming and costly affair. Even when successions are uneventful and straightforward, any mistake&mdash;no matter how minor&mdash;could force heirs to wait months for their inheritances.
How a Louisiana Succession Lawyer Can Help

Order death certificates
Locate an original will
Initiate a probate case and file the appropriate paperwork
Collect, inventory, and manage estate assets, including assets such as safe deposit boxes you may not have known existed
Appraise real properties, artwork, and collectibles
Re-title bank accounts and transfer life insurance proceeds
Assess creditor claims, dismissing those that are not valid or seem suspect
Pay estate creditors and resolve the decedent&rsquo;s debts
Resolve disputes among heirs without the need for arbitration or trial
Advocate the estate&rsquo;s interests in the event of any creditor contest or challenge
Distribute inheritances quickly and efficiently

Louisiana law does not require that executors or heirs hire an attorney to settle an estate. However, hiring an experienced probate lawyer could help beneficiaries receive their inheritances with minimal delay.
Scott Law Group - Estate Counsel for Your Estate and Probate Needs
The succession attorneys for Scott Law Group - Estate Counsel handle probate and estate issues for clients throughout Louisiana. Many of our clients contact us without knowing what specific legal services they need. A family member may have just died, and the client is finalizing the estate, or the estate is stuck in probate, and they don&rsquo;t know what to do. Our skilled, experienced succession attorneys analyze the issue they face and find an effective solution.
Because our team has handled so many estates, we&rsquo;ve probably seen one like yours. Whether you want to create an estate plan or update your current plan, you&rsquo;re dealing with a disruptive family member who&rsquo;s causing problems during the estate settlement process, or you&rsquo;re trying to validate a last will and testament, our exceptional attorneys will work to help you protect your legal rights. Our attorneys understand complicated family dynamics and have worked with estates of all sizes. Contact us online, or call Scott Law Group - Estate Counsel today at 504-264-1057.

Question 10

Ancillary Successions

Accepted Answer

Louisiana&rsquo;s unique laws can help ease the stresses of succession. For many families, probating an estate is a fairly straightforward process, demanding little more than ensuring the court receives the right paperwork at the right time. However, an otherwise simple succession could demand additional attention if the deceased person owned assets in another state or country. 
How Out-of-State Properties Can Affect a Louisiana Succession
Every state has its own probate code. In Louisiana, probate is often referred to as &ldquo;succession.&rdquo; During succession, the deceased person&rsquo;s personal representative must inform the court of the decedent&rsquo;s death. After succession is initiated, the executor is tasked with settling the estate by paying creditors and distributing inheritances.
Louisiana, like most states, allows many executors to administer an estate with limited court oversight. However, if the decedent owned property titled in another state or another country, the executor may have to open ancillary probate proceedings.
Domiciliary and Ancillary Successions
If a Louisiana resident held properties or accounts in another state, their executor might have to initiate either or both of the following types of succession proceedings:

Domiciliary succession. A domiciliary succession must be opened in the deceased person&rsquo;s place of residence, or domicile. In a domiciliary succession, the executor must present a copy of the decedent&rsquo;s last will and testament for verification before collecting the estate&rsquo;s assets, clearing its debt, and distributing inheritances.
Ancillary succession. An ancillary succession may be opened if a Louisiana resident owned property in another state or territory or an out-of-state resident owned property in Louisiana. Under most circumstances, an ancillary succession can be initiated without a will, provided the decedent&rsquo;s estate plan has already been submitted in their principal state of residence.

Domiciliary and ancillary successions can be complementary. However, different courts in different states may have different requirements for executors.
The Challenges of Filing for an Ancillary Estate Succession
Since every state has its own probate code, the procedure for initiating an ancillary succession varies from one state to another. In Louisiana, ancillary proceedings are similar to other probate proceedings.
However, domiciliary and ancillary proceedings may differ in several key respects. For example:

The estate representative has priority in the domiciliary proceeding. If the deceased person created an estate plan and named an executor to settle their estate, the executor will be presumed competent to fulfill their duties by the domiciliary state. While a Louisiana court could disqualify an executor for one of several different reasons, most adults of good moral character may act as an estate representative.
The executor may not be authorized to probate ancillary assets. The executor appointed for the domiciliary succession might lack the legal capacity to initiate ancillary proceedings in another state. If the personal representative does not have this legal capacity, they must either hire an attorney or petition the out-of-state court for permission to administer the estate&rsquo;s ancillary assets.
The domiciliary and ancillary courts might have different expectations. While different states have different requirements for wills and testaments, an estate plan created in accordance with the law of one state will customarily be recognized as valid in another. So, if succession was initiated in the decedent&rsquo;s state of residence, the executor is not necessarily required to formally probate the will in the ancillary state. However, an estate representative&rsquo;s ability to faithfully execute the terms of the deceased person&rsquo;s will could be affected by jurisdictional constraints.

How an Attorney Could Help You Fulfill an Ancillary Succession
Filing an ancillary succession is typically straightforward. However, executors do not always have the legal capacity to initiate proceedings in another state. An experienced Louisiana succession attorney could help you settle a loved one&rsquo;s estate by taking the following steps:

Filing the right paperwork with the right out-of-state court
Properly re-titling and transferring the decedent&rsquo;s assets in accordance with Louisiana law
Resolving any disputes that might arise, ensuring that you need not travel repeatedly to another state

Contact a Louisiana Succession Lawyer Today
Scott Law Group - Estate Counsel has spent decades helping Louisiana residents build and protect their legacies. If you need assistance filing a succession outside the Bayou State, please call us today at 504-264-1057 to schedule your initial consultation.




Related links:

How an Independent Administration of an Estate Works in Louisiana
Opening a Succession to Settle an Estate in Louisiana
When is probate necessary in Louisiana?

Question 11

Creditor Lawsuits Against a Louisiana Estate

Accepted Answer

Succession can sometimes present problems, both foreseen and unexpected. While the ultimate aim of probate is the disbursement of inheritances, creditors are also entitled to make claims against an estate. Under certain circumstances, creditors can file a lawsuit against a deceased person&rsquo;s estate to recover unpaid debts. 
Creditor Claims in LA Probate Proceedings
The executor of an estate is responsible for disbursing inheritances and ensuring that an estate&rsquo;s creditors are paid. The Louisiana Code of Civil Procedure details how prospective creditors can recover any outstanding debts.
How Creditors Recover LA Debt

If the creditor wants to file a claim against the estate, they must submit notice to the estate representative.
The estate representative has 30 days to either acknowledge or reject the claim.

If the executor acknowledges the claim, it is presumed valid. Unless the estate representative objects to the claim, the representative may ask the court to authorize a payment of the debt. The creditor could then receive compensation from the estate.
Estate Representatives Can Reject LA Creditor Claims
Estate representatives are legally obliged to notify potential creditors that they have initiated probate proceedings. However, an executor need not accept or respond to a claim.
If the estate representative does not respond to a claim, the court will presume that it has been rejected.
How Creditors Make Legal Claims on Unpaid Debts
If the estate representative rejects or does not respond to a creditor claim, the creditor could file a formal and written proof of claim to the executor.
What&rsquo;s Included in a Written Proof of Claim

The name and address of the deceased creditor
The amount of the claim
A description of the claim
A description of any security associated with the claim
Any relevant evidence of the debt

Creditors and Estate Lawsuits
Estate representatives are fiduciaries, which means they must act in the best interests of the estate. If a representative does not believe that a creditor claim has merit, they may reject it. However, creditors are considered &ldquo;interested parties&rdquo; in probate proceedings. This means, they may contest an estate&rsquo;s dissolution and intended disbursement of assets.
Thus, creditors often respond to claim rejection through alternate legal strategies. These alternate remedies could include a lawsuit or lawsuits.
Reasons a Creditor May File a Lawsuit

To contest the validity of a will
To ask the court to recognize that the deceased person&rsquo;s debt is still valid
For the continuation of litigation initiated prior to the decedent&rsquo;s death
For the recovery of estate property held as secured debt

Creditor Claims Aren&rsquo;t Always Made in Good Faith
An estate representative could be appointed by the court. However, if the deceased person had a will, they likely designated an executor. Often, the estate representative is a close friend or family member of the decedent and may not have any special legal training. Creditors often try to take advantage of estate representatives in court.
How Creditors Take Advantage of LA Representatives

Trying to recover expired debt
Seeking a judgment lien against a protected property
Pressuring heirs and family members to pay back the decedent&rsquo;s debt 

The Dangers of Creditor Claims
A significant creditor claim could pose a serious threat to an estate. Even if the personal representative eventually prevails in court, protracted litigation can be time-consuming and emotionally draining. If the creditor is unwilling to negotiate in good faith, the estate representative could be compelled to use the estate&rsquo;s assets to defend against the claim.
By the end of the lawsuit, the deceased person&rsquo;s loved ones, heirs, and beneficiaries could be left with little to nothing.
Are You Facing an LA Creditor Claim?
You do not have to face a creditor claim alone. Scott Law Group - Estate Counsel can help protect your loved one&rsquo;s legacy by ensuring that an estate&rsquo;s most valuable assets remain safe from potential threats. We can assess the validity of a creditor&rsquo;s demand and stand up to them in court if their claim cannot stand up to Louisiana law.
If you have any questions about how to handle a creditor claim in a Louisiana succession claim, please contact Scott Law Group - Estate Counsel or call 504-264-1057 to get started on your case today.




Related links:

Can I object to a will I&rsquo;m not in?
What happens to a revocable living trust in a Louisiana succession?
When is probate necessary in Louisiana?

Question 12

Disinheriting a Child Under Louisiana Law

Accepted Answer

I am an adult biological child who along with my two sisters were left out of my father's will.  We had limited contact with him since our parents divorced when we were children.  My step-mother did everything she could to keep him away from us.  Do we have any rights to his estate?  What I have been researching tells me that in Louisiana you can&rsquo;t leave biological children out of the will without &ldquo;just cause.&rdquo;  Is that true?  If so, I can&rsquo;t imagine what just cause would be in our situation and I may be interested in pursuing the matter.
Forced Heirship Laws
Louisiana does have forced heirship laws that limit a parent&rsquo;s ability to disinherit a child.  However, the forced heirship laws only apply to specific situations. Unless you fit into one of these categories, you do not have a right to receive anything from your parent&rsquo;s estate if he had a valid last will & testament when he passed away. 

To qualify as a forced heir under Louisiana law, you must:

Be under 24 years of age, or
Any age, but have a physical or mental impairment that renders you incapable of caring for yourself

If either of these circumstances are present, you may qualify as a forced heir and regardless of what your parent&rsquo;s will states, you would have a right to receive a portion of the estate. 
Contesting the Will
If the circumstances for forced heirship are not present, your parent&rsquo;s last will & testament will determine who inherits his estate.  If that is the case, the only option you would have is to look into whether there are any issues as to the validity of the last will and testament. 
If for some reason the last will and testament is invalid, then the laws of intestacy would apply, and likely result in you and your siblings receiving his estate. If you wish to pursue challenging the validity of the will, call Scott Law Group, Estate & Probate Division or contact us through the contact form on this page to schedule a consultation.

Question 13

Extrajudicial Successions

Accepted Answer

An extrajudicial succession is a way to settle an intestate succession without filing pleadings in court. This type of succession may be an option for you if the decedent died:

Intestate (or without a will or an estate plan)
Without immovable property (such as real estate)
With heirs that are all descendants, ascendants, a spouse, siblings, or descendants of siblings
With an estate value that does not exceed the current limit set by Louisiana law

All four of these conditions must be met to proceed with an extrajudicial succession in Louisiana. 
How an Extrajudicial Successions Work
Heirs must still follow specific procedures to settle an intestate estate, even if they pursue an extrajudicial succession. Specifically, heirs must execute an affidavit. The affidavit gives authority to banks or others with an interest in the estate to make payments or receive payments from the property of the decedent. In other words, banks and others may rely on the affidavit to complete the business of the estate. Additionally, the heirs must prepare a Louisiana Inheritance Tax Return and pay any taxes that are due. However, the heirs do not have to file any pleadings in court.
Should You Pursue an Extrajudicial Succession?
Extrajudicial succession may benefit some families but may not always be the right choice for heirs, even if they technically meet the extrajudicial succession requirements.
Louisiana succession law is complicated, and the choices that you make are important, but you don&rsquo;t have to make them alone. Our experienced attorneys at Scott Law Group - Estate Counsel are here to help you every step of the way. We will review all of your options with you and advise you of any succession options that are cost-effective and efficient. Together, we will help you take care of the business of settling your loved one&rsquo;s estate. Please call us or complete our online contact form to get started today.




Related links:

What to Do Before You Start a Succession Case
Common Pleadings in Louisiana Succession Cases
What are my options if I&rsquo;m an heir in a Louisiana succession case?

Question 14

Forcing the Sale of an Inherited Property

Accepted Answer

One of the most common disputes among Louisiana heirs is what to do with inherited property that multiple people now own together. Maybe three siblings inherited their parent's house. One wants to live in it. One wants to sell. One wants to rent it out. Absent agreement, who wins?

Louisiana law provides a specific legal mechanism called partition &mdash; and in the most contested cases, partition by licitation &mdash; that allows any co-owner to force the sale of jointly-owned property when the owners can't agree on what to do with it. This page explains how that process works, when it applies, and what heirs facing this situation actually need to know.

The situation: co-ownership after succession

When multiple heirs inherit a single piece of property in undivided shares &mdash; for example, three siblings each inheriting a 1/3 interest in their parent's home &mdash; Louisiana law calls this indivision. Each co-owner has an undivided fractional interest in the whole property; none owns any specific part.

Indivision works fine when everyone agrees. It becomes a problem when:

One co-owner wants to sell, another wants to keep the property
One co-owner wants to live in the property, others want their money out
One co-owner is occupying the property without paying rent or taxes
Co-owners disagree on whether to rent, renovate, or mortgage
Some co-owners can't be reached or are unresponsive

When consensus fails, Louisiana's partition procedures kick in.

No one can be forced to remain a co-owner

The foundational rule in Louisiana law (La. C.C. art. 807) is that no one can be forced to remain a co-owner. Any co-owner, however small their fractional interest, has the right to demand partition and end the co-ownership. This is a statutory right, not something that can be waived by custom or family pressure.

A co-owner with a 1% interest can force partition just as effectively as a co-owner with a 99% interest. The right is absolute, though exceptions exist for short-term agreements not to partition and for certain trust structures.

Two types of partition: in kind and by licitation

Partition in kind

If the property can be divided into physical portions &mdash; for example, 100 acres of land that can be divided into four 25-acre parcels &mdash; the court's preference is partition in kind. Each co-owner gets a physical portion proportionate to their interest, typically with the help of a surveyor and sometimes a court-appointed expert.

Partition in kind works for: large tracts of land, certain commercial properties, portfolios of separable assets.

It doesn't work for: most residential homes, single commercial buildings, business interests, or anything else that loses value or utility when divided.

Partition by licitation (La. C.C. art. 811)

When property cannot be divided in kind, Louisiana courts order partition by licitation &mdash; the property is sold at public auction, and the proceeds are divided among the co-owners according to their fractional interests.

This is the mechanism that "forces the sale" of inherited property. When you hear someone say "I'm going to force the sale of this house," they're invoking partition by licitation.

How partition by licitation actually works

Step 1: The demand for partition

Any co-owner can initiate partition by filing a petition for partition in the district court where the property is located (for real estate) or another proper court. The petition identifies the property, the co-owners, and their fractional interests, and asks the court to order partition.

Step 2: The opportunity for partition in kind

Before ordering a sale, the court typically considers whether partition in kind is feasible. This may require expert evaluation &mdash; particularly for land with development potential, the court may want testimony from surveyors or appraisers about whether the property can be divided.

For most residential properties, partition in kind is not feasible. A three-bedroom house cannot be sawed in thirds. This determination is usually made relatively quickly.

Step 3: The order for sale by licitation

Once the court determines partition in kind won't work, it orders the property sold at public auction. The sale is typically conducted by the parish sheriff at a sheriff's sale, with all co-owners entitled to bid.

Step 4: Sheriff's sale

Louisiana sheriff's sales have specific procedures. The property is advertised. A minimum bid may be set (often based on an appraisal). At the sale itself, the property goes to the highest bidder, who may be a co-owner or a third party. Co-owners often compete in the bidding &mdash; one co-owner who wants to keep the property bids against whatever outside bids come in.

The property typically sells for less than private-sale market value, which is one reason partition by licitation is often a last resort.

Step 5: Distribution of proceeds

After sale expenses, attorney fees, and any outstanding debts secured against the property are paid, the remaining proceeds are distributed to the co-owners in proportion to their interests. A co-owner with a 1/3 interest takes 1/3 of net proceeds.

Costs and timeline

Partition by licitation is expensive and slow:

Attorney fees: $5,000&ndash;$20,000+ for a contested partition
Court filing fees, publication costs, sheriff's fees: $500&ndash;$2,000
Sale discount: sheriff's sales typically yield 70&ndash;85% of private-sale market value
Timeline: 6 months to 2+ years from filing to completed sale

If the property is worth $300,000, a partition by licitation might net $210,000&ndash;$250,000 after sale discount and expenses. That's a significant loss compared to a private sale with agreement among heirs.

Alternatives to forcing a sale

Voluntary private sale

If the heirs can agree to sell privately, they typically net 15&ndash;30% more than a sheriff's sale would produce. Voluntary sales also avoid most of the attorney fees and court costs. This is almost always the better outcome when possible.

Buyout among co-owners

One co-owner who wants to keep the property can buy out the others. Fair market value is typically determined by appraisal, and the staying co-owner pays the departing co-owners their share in cash or by financing. Banks will often loan money specifically for co-owner buyouts against the property as collateral.

Rental with proceeds sharing

If the property can generate rental income, co-owners may agree to rent it out and share the proceeds according to their interests. This works when no co-owner particularly wants to occupy or sell the property.

Exchange of interests

If the estate includes multiple properties, co-owners may exchange interests. Heir A takes full ownership of property 1; Heir B takes full ownership of property 2. This requires reasonable equivalence in value and cooperation.

Settlement before partition

Even when partition has been filed, many cases settle before sale. The threat of partition often brings reluctant co-owners to the negotiating table, and mediated settlements produce better outcomes than forced sales.

Common complications

One heir is living in the property without paying rent

A co-owner occupying jointly-owned property may owe rent to the other co-owners. This is called an occupational rent claim. If one sibling has been living in the inherited house for years without paying, the other siblings may be entitled to their proportionate share of fair market rent.

Occupational rent claims are often litigated as part of the partition proceeding. The amounts can be substantial.

One heir has been paying all the taxes and maintenance

Conversely, a co-owner who has been paying property taxes, insurance, repairs, and maintenance out of their own funds may claim reimbursement from the other co-owners. These claims are typically netted against any occupational rent claim.

Improvements by one co-owner

If one co-owner made significant improvements to the property (renovations, additions), they may be entitled to reimbursement for the value of those improvements &mdash; though this is not automatic, and the specific legal rules under La. C.C. art. 497 and following apply.

Mortgages and creditors' rights

If the property is subject to a mortgage, the mortgage must be paid off from sale proceeds before distribution to co-owners. If the mortgage exceeds the property's value, the co-owners may receive nothing.

Disagreement about value

Co-owners frequently disagree about property value. Courts typically rely on professional appraisals, but each side may present its own appraiser, leading to expert testimony disputes.

One co-owner cannot be located

If a co-owner cannot be found, the court can appoint an attorney to represent their interests (curator ad hoc), and partition can proceed. This adds time and cost but doesn't prevent the sale.

Minor co-owners

When minor children inherit, their interests are represented by a tutor or court-appointed representative. Partition involving minor co-owners requires additional court oversight.

The emotional dimension

Partition by licitation is rarely just a legal matter. Family homes, in particular, carry emotional weight. Forcing a sale often damages relationships permanently. We counsel clients considering partition to consider:

The relationship cost. Partition litigation is adversarial. Expect years of damaged family relationships.
The financial cost. You'll net less than a private sale, and legal fees eat substantial portions of what's left.
The time cost. Resolution typically takes 6 months to 2+ years.
The alternatives. Mediation, buyout, or even just sitting with the current situation while longer conversations happen may produce better outcomes.

We've seen siblings who hadn't spoken in 15 years find their way to a reasonable settlement when given time and a mediator. We've also seen siblings fight a partition all the way to auction and never speak again. The difference often isn't the underlying facts &mdash; it's the willingness to pause before filing.

When to consider filing partition

Partition is the right choice when:

Every reasonable alternative has been exhausted
One or more co-owners are actively blocking productive use of the property
The property is deteriorating due to uncertainty
A co-owner is refusing to communicate entirely
The financial loss of continued indivision exceeds the loss from forced sale

Partition is usually the wrong choice when:

Co-owners are willing to talk but disagree on terms
A private sale or buyout is feasible with more negotiation
The emotional cost would exceed the financial benefit
The property is complex (business, mineral interests) and would be undervalued at sheriff's sale

Frequently asked questions

Can I block a partition if I don't want to sell?

Generally no. Louisiana law grants any co-owner the right to demand partition, and courts typically cannot force an unwilling co-owner to remain in indivision. Limited exceptions exist for agreements not to partition for a fixed period (typically up to 15 years under La. C.C. art. 810), but these must be in writing and are uncommon.

What fraction of ownership is required to force partition?

Any fractional interest is sufficient. A 1% co-owner has the same right to demand partition as a 99% co-owner.

Can I buy out the other co-owners instead of going to auction?

Yes, if they'll agree to a price and terms. During a partition proceeding, negotiations often continue, and many cases settle with a buyout before the sheriff's sale.

What happens to my usufruct in a partition?

If you hold a usufruct over the property and the naked owners demand partition, the interaction is complex. Partition during the usufruct may not be permitted, or the sale may be subject to the continuing usufruct (reducing the sale value). Usufruct-related partition issues typically require specialized legal analysis.

If we're all heirs and agree on a private sale, do we need to involve the court?

No. If all co-owners agree to sell, you can simply list the property, complete a private sale, and divide proceeds according to your fractional interests. The succession must still be completed (if not already), but no partition proceeding is needed.

Can partition affect property that includes a family homestead?

Louisiana's homestead exemption for the surviving spouse in a usufruct situation can complicate partition. A surviving spouse living in the decedent's former home under a usufruct generally cannot be forced out via partition by the naked owners, but specific circumstances matter.

What about partition of business interests or mineral royalties?

Partition of non-real-estate assets follows similar principles but has its own specifics. Mineral royalties and business interests are often partitioned by licitation because physical division isn't possible. Partition of an LLC membership interest requires navigating both partition law and the LLC's operating agreement.

If you're a co-owner of inherited property and can't reach agreement with the other co-owners, or if another co-owner has filed partition against you, contact Scott Law Group - Estate Counsel or call us at (504) 264-1057. Early consultation often identifies options that avoid the expense and relationship cost of full partition by licitation. When partition is the right path, we can help you navigate it efficiently.

This article provides general information about Louisiana partition law and is not legal advice. Specific situations should be reviewed with a qualified Louisiana attorney.

Question 15

How a Louisiana Succession Lawyer Could Help Your Family

Accepted Answer

Every state has its own procedures for dealing with an estate after death. However, Louisiana&rsquo;s civil code is as unique as its culture and history. For many Bayou State residents, dealing with succession can be frustrating and overwhelming. That&rsquo;s why it&rsquo;s beneficial to hire a Louisiana succession attorney who can help the estate executor or beneficiaries to settle the estate. 
How Succession Lawyers Ease the Pain of Probate
Under LA law, you don&rsquo;t have to have a lawyer to execute an estate or administer a trust.
However, succession proceedings can present unexpected challenges. An attorney can navigate you through the uncertainty of the succession process, helping to ensure that an estate remains solvent even when it is under attack by heirs or creditors. There are other benefits to having a Louisiana succession lawyer, including:
You Have a Local Point of Contact
Making sense of probate can be difficult for everyone&mdash;especially executors and heirs who live in another state. A Louisiana succession lawyer can help you make sense of the Bayou State&rsquo;s laws and advocate in your best interests, especially if you cannot regularly travel to the parish probate court.
You Can Trust That State Law Is Followed and Deadlines Are Met
Probate is a deadline-driven process. Even if you live in Louisiana, keeping abreast of the court&rsquo;s requirements can be challenging. You may be required to initiate probate, amend documents, and notify interested parties of proceedings&mdash;all within a relatively short timeframe. Any mistake, no matter how minor, could jeopardize proceedings, setting them back by days, weeks, or months.
They Can Help Ensure the Estate Is Represented By a Competent Executor
If the deceased person had a will, trust, or another estate plan, they most likely nominated an executor. However, executors always have the option of declining the position and all of the associated responsibilities.
If the decedent did not have a will, or the executor does not wish to negotiate succession alone, a Louisiana probate attorney could help you nominate or locate a competent administrator.
They Can Help Ensure Assets Are Marshalled, Inventoried, and Responsibly Managed
While serving as an estate executor could seem like an honor, being a personal representative can be a real challenge. After opening a succession claim and sending notices of probate to interested parties, the executor must:

Locate all of the deceased person&rsquo;s assets, including assets in safe deposit boxes, hidden bank accounts, and storage spaces
Create a comprehensive inventory of the estate
Appraise any valuable artwork or collectives
Ensure that estate assets, including investments, are responsibly managed until succession is closed

A lawyer can, at the very least, help executors overcome the many challenges involved in marshalling, inventorying, and managing estate assets.
They Can Help Ensure the Estate Remains Safe From Challenges
Almost any interested party can challenge the terms of a will, trust, or other estate-related decision. Even when challenges appear frivolous, they can still drain the estate of its assets&mdash;leaving little left over for deserving heirs and beneficiaries.
An experienced Louisiana probate lawyer could help you, or an executor, appraise the merits of any potential challenges and respond to plaintiff claims accordingly.
They Can Help Ensure That Heirs Receive Their Inheritances
Disbursing inheritances is often easier said than done. Some institutions, including banks and government agencies, may request multiple copies of the deceased person&rsquo;s death certificate before processing a title transfer.
Scott Law Group - Estate Counsel for Your Estate and Probate Needs
The succession attorneys for Scott Law Group - Estate Counsel handle probate and estate issues for clients throughout Louisiana. Many of our clients contact us without knowing what specific legal services they need. A family member may have just died, and the client is finalizing the estate, or the estate is stuck in probate, and they don&rsquo;t know what to do. Our skilled, experienced succession attorneys analyze the issue they face and find an effective solution.
Because our team has handled so many estates, we&rsquo;ve probably seen one like yours. Whether you want to create an estate plan or update your current plan, you&rsquo;re dealing with a disruptive family member who&rsquo;s causing problems during the estate settlement process, or you&rsquo;re trying to validate a last will and testament, our exceptional attorneys will work to help you protect your legal rights. Our attorneys understand complicated family dynamics and have worked with estates of all sizes. Contact us online, or call Scott Law Group - Estate Counsel today at 504-264-1057.

Question 16

Finding the Right Succession Litigation Attorney

Accepted Answer

Louisiana has a unique legal system. For most Bayou State residents, the Code of Civil Procedure provides a straightforward and reasonably cost-effective means to bypass probate. However, even simple estates can be complicated by challenges and contests&mdash;contests that could, under the wrong circumstances, lead heirs and beneficiaries to lose their inheritances.
While you do not need to hire an estate litigation attorney to file or resolve a probate contest, a Louisiana succession lawyer could help you preserve an estate&rsquo;s solvency and ensure that challenges yield a fair outcome. 
Deciding Whether You Need a Louisiana Estate Litigation Attorney
Every state, Louisiana included, maintains an open judiciary. Under most circumstances, you do not need a lawyer to initiate probate, file a lawsuit, or represent yourself in court. However, litigating a high-stakes claim can present unexpected challenges. Unless you&rsquo;re well-versed in Louisiana law, any mistake&mdash;no matter how minor&mdash;could compromise your case, forcing the court to dismiss your claim without giving it the consideration it deserves.
Before making a decision, ask yourself the following questions:
Do You Have Legal Standing to Initiate a Lawsuit or Defend Against a Challenge?
Louisiana law limits who can&mdash;and who cannot&mdash;file an estate-related lawsuit. In general, only interested parties can initiate a claim. An interested party could include the estate representative, an heir, or even a creditor.
However, in estate claims, it is not uncommon for the defense attorney to challenge an interested party&rsquo;s standing. In some cases, they may even try to convince the court that you are misinterpreting or misunderstanding the testator&rsquo;s original intent.
Do You Have the Evidence Needed to Prevail?
Louisiana succession claims are often contingent on the availability and quality of evidence. The evidence you need is dependent on the nature of the contest. If, for example, you suspect the decedent&rsquo;s last will and testament has been forged or altered, you may need to search for an original copy or hire a qualified handwriting expert to assess the signature.
Do You Have the Time Needed to Litigate a Succession Claim?
A lawsuit can take weeks, months, or even years to resolve, depending on it is complexity and the other party&rsquo;s willingness to negotiate. You may be required to appear in court regularly. If you live in another state or parish, traveling to hearings could interfere with your work schedule and ordinary routine.
How to Choose the Right Estate Litigation Attorney
Since litigating a Louisiana succession claim takes time and an intensive understanding of state law, most executors, heirs, and creditors hire an attorney to advocate on their behalf. However, choosing the right lawyer can be a challenge.
What to Look for

Client reviews. Probate litigation attorneys who have an established record of success will usually highlight their achievements. Read their client reviews, paying particular attention to cases similar to your own.
Informational materials. You may be able to learn more about your attorney and your claim before scheduling a consultation. For instance, we provide prospective clients with an assortment of free informational material, which covers topics ranging from asset transfers to probate procedures.
Attorney profiles. Every practicing lawyer has the same fundamental training: they went to college, attended law school, and successfully passed the state bar. However, some attorneys have backgrounds better suited to certain types of litigation. If your lawyer does not regularly practice succession law or has only litigated a handful of probate claims, they may not be your best choice.

Contact an Experienced Louisiana Succession Attorney Today
Scott Law Group - Estate Counsel has spent years protecting Louisianans&rsquo; rights to their legacy. If you are considering filing a succession claim, please call us at 504-264-1057 to speak to an attorney and schedule your initial consultation as soon as possible.

Question 17

How Executors Are Paid in Louisiana Probate Cases

Accepted Answer

Yes, succession representatives are paid for their work in Louisiana successions. Both executors appointed in wills and administrators appointed in intestate successions may receive compensation according to Louisiana law. 
Compensation for Executors and Administrators
Louisiana law provides for the following compensation:

Reasonable compensation for executors, as provided in the will
Reasonable compensation for administrators, as provided by agreement between the surviving spouse and all competent heirs and legatees

If the executor&rsquo;s compensation is not set in the will or the administrator&rsquo;s compensation can&rsquo;t be reached by agreement, the executor or administrator may be paid an amount equal to two and one-half percent of the amount of inventory as compensation. If the court finds that two and one-half percent is inadequate given the circumstances of the particular succession, it may increase the amount of compensation.
Compensation is payable when the final account of the estate is approved, but the court may allow an administrator or an executor an advance on compensation at any time during the administration of the estate.
If a provisional administrator or an administrator of a vacant succession is appointed, that person shall be allowed fair and reasonable compensation for their services, as determined by the court.
If You Disagree With Succession Representative Compensation
You may be an heir who believes that the executor or administrator is being paid too much, or you may be a succession representative who is being underpaid. Either way, you may face a legal fight if you can&rsquo;t reach an agreement about succession representation compensation.
Our experienced attorneys at Scott Law Group - Estate Counsel handle hundreds of successions throughout the state each year. We understand the issues you are facing, and we are prepared to help you reach a fair resolution to succession representative compensation disagreements efficiently and cost-effectively. To schedule a consultation to learn more about how to protect your rights, contact us today by phone or by completing our contact form.




Related links:

Where an Executor Should File a Louisiana Succession
What is a Succession?
Starting the Succession or Probate Process in Louisiana

Question 18

How Attorneys Help Louisiana Estate Executors

Accepted Answer

If you have been appointed the executor of a loved one&rsquo;s estate, you may have already considered hiring an attorney to help. While Louisiana law does not require that estate representatives have legal counsel, succession can be a time-consuming, expensive, and emotionally draining ordeal. An experienced succession and probate litigation attorney could help you settle a friend or relative&rsquo;s affairs with minimal hassle, ensuring their heirs get the closure they need and the inheritance they deserve. 
Acting as an Executor in Louisiana
An executor represents a deceased person&rsquo;s estate and handles remaining material interests. After a Louisiana resident passes away, their executor is tasked with protecting the estate until any outstanding debts and taxes have been paid. Once any prospective creditors have been dealt with, the executor may begin disbursing gifts and inheritances to any beneficiary named in the decedent&rsquo;s last will and testament.
Who Can Be an Executor
Louisiana&rsquo;s Probate Code presumes that most people have the capacity to act as an estate executor. An executor must:

Be 18 years of age or older
Be of sound mind, not having been adjudicated as mentally deficient by a court
Not have a felony criminal record

In some, limited circumstances, the court could reject a designated executor if there is reason to believe the executor is not of good moral character. However, with few exceptions, the court will permit most competent adults to serve as an estate representative.
The Challenges of Acting as an Estate Executor
While Louisiana has some restrictions on who can act as an executor, the courts do not require that personal representatives have an attorney to assist them in settling an estate. However, settling an estate can be time-consuming, costly, and emotionally challenging. Before an executor may begin paying creditors or disbursing inheritances, they must take full account of the decedent&rsquo;s possessions&mdash;including possessions that may be difficult to access such as safe deposit boxes and overseas assets.
If anyone tries to contest the deceased person&rsquo;s will or file any other challenge against the estate, the executor has an outstanding legal obligation to defend the estate and its interests in court. So, it&rsquo;s beneficial to have an attorney working to protect the estate.
How Probate Attorneys Simplify Succession

Filing probate paperwork on your behalf. Probate in Louisiana is a time-sensitive process. If you miss a filing deadline, you could be held liable for any damages incurred by creditors or heirs. An experienced probate attorney can ensure that you, and the estate, stay compliant with state law. 
Inventorying and appraising the estate&rsquo;s assets. Executors are required to gather all of the decedent&rsquo;s assets that could be subjected to the probate court&rsquo;s jurisdiction. Depending on the nature and quantity of the assets, you may have to get certain items professionally appraised. The experienced probate lawyers at Scott Law Group - Estate Counsel could spare you the burden of sifting through a loved one&rsquo;s belongings and can complete the task on your behalf.
Defending the estate against frivolous creditor claims. Before an executor may disburse inheritances, they must notify potential creditors that the estate has entered probate. This permits creditors to file claims against the estate. However, creditor claims are not always made in good faith. A Louisiana succession lawyer could help you determine the truth behind creditor claims, denying wrongdoers the chance to profit off a friend or relative&rsquo;s death.
Protecting the estate from litigation. Estate executors advocate the estate&rsquo;s interests. If an heir, creditor, or third party tries to contest the terms of a last will and testament, the executor must use the estate&rsquo;s assets to defend the estate against the challenge. While executors are not expected to pay out of pocket for litigation, a long, drawn-out lawsuit could deplete the estate&rsquo;s assets, leaving little left over for legitimate heirs.
Paying creditor claims and disbursing inheritances. Our attorneys could resolve any creditor or heir disputes out of court, protecting the estate&rsquo;s integrity and the decedent&rsquo;s reputation.

Do You Need Help Executing a Louisiana Estate?
Estate executors have many responsibilities&mdash;obligations that can be very complicated and can take time away from friends, family, and work. However, you do not have to navigate the complexities of a Louisiana succession alone. The attorneys at Scott Law Group - Estate Counsel could help ease your burden. Please call us today at 504-264-1057 to get started today.




Related links:

Contested Wills Can Have Tragic and Unexpected Outcomes
Estate Issues If Your Parent Created an Estate Plan Without an Attorney
How Creditor Claims and Limitations Could Jeopardize a Louisiana Estate

Question 19

How Refusing an Inheritance Could Cost Your Family

Accepted Answer

For many Louisianans, writing a will or funding a trust is the first step toward establishing a long-lasting, intergenerational legacy. While testators often go to great lengths to ensure that their heirs stand to benefit from whichever gifts they may be bequeathed, not everyone wins when they receive news of an impending inheritance. However, even when people have compelling reasons to refuse an inheritance, the  can have far-reaching consequences.
Common Reasons to Refuse an Inheritance
Even if a sizeable inheritance could improve your financial standing, you may still have compelling reasons to refuse it. While everyone has different reasons to reject a gift, you might have considered turning down an inheritance if you have concerns about:

Estate taxes. Louisiana, like most states, does not have a state-level inheritance tax. However, the Internal Revenue Service still expects a share of certain high-value estates. If a substantial gift would push your net worth closer to the taxation threshold, you might consider rejecting an inheritance to protect your own heirs from receiving an unexpected bill from the federal government.
Government aid. Eligibility for many government assistance programs, including Medicaid, can be affected by an applicant&rsquo;s income and net worth. Since millions of Americans either rely on government benefits to overcome a disability or expect that they may need assistance later in life, declining a large inheritance could ensure that you and your loved ones do not lose access to a much-needed safety net. 
Maintenance. Some estate assets, such as an old home or classic motor vehicle, may require a significant investment to restore or return to working condition. If the anticipated costs of maintenance exceed the potential rewards of accepting a gift, heirs may feel it is in their best interests to let the asset pass to someone else.

What Happens When You Refuse an Inheritance
If you have a compelling reason to refuse an inheritance, you may not be able to exercise any control over who eventually receives the gift intended for you.
While many Louisianans hope that they can simply request that their share of an estate be bequeathed to their own children, the Bayou State&rsquo;s probate courts will not typically honor such requests.
How Unclaimed Gifts Are Distributed 

The decedent&rsquo;s contingent beneficiaries. Some testators include contingent&mdash;or alternate&mdash;beneficiaries, who may receive a gift if the intended heir either refuses the inheritance or passes away before the estate is probated. However, the contingent beneficiary need not be related to the original beneficiary.
Louisiana&rsquo;s intestacy laws. When someone passes away without a will, trust, or another estate plan, they are said to have died &ldquo;intestate.&rdquo; Louisiana&rsquo;s Code of Civil Procedure defines how an intestate should be distributed in the absence of a will. In general, intestate successions favor the deceased person&rsquo;s closest living relatives.

How an Intestate Succession Could Affect an Estate
If you refuse an inheritance and the decedent did not appoint an alternate beneficiary, your share of the estate could be distributed according to Louisiana&rsquo;s intestacy laws. Depending on your relationship to the decedent, these laws may not benefit your children or other family members.
Intestate successions tend to favor the deceased person&rsquo;s closing living relations in this order:

If the decedent had children but no spouse, their children inherit the refused assets.
If the decedent had a spouse but no children, parents, or surviving parents, the spouse inherits the refused assets.
If the decedent had surviving parents but no children, spouse, or siblings, the parents inherit the refused assets.
If the decedent had surviving siblings but no children, spouse, or parents, the siblings inherit the share of the inheritance.
If the decedent had both children and a spouse, the spouse retains a lifelong interest in the deceased person&rsquo;s community property, whereas the children inherit it&mdash;along with the decedent&rsquo;s separate property&mdash;upon the death of the surviving spouse.

Under certain, limited conditions, intestate assets could be gifted to more distant relatives, including grandchildren, uncles, aunts, and even cousins.
Contact a Louisiana Succession Attorney Today
While you may feel you have no choice but to refuse an inheritance, a Louisiana succession attorney can help you explore alternate strategies to retain a gift and provide for your loved ones without increasing your tax liability or limiting your eligibility for government benefits. Please call Scott Law Group- Estate Counsel at 504-264-1057 to speak to a legal professional and schedule your consultation as soon as possible.




Related links:

What Makes Louisiana Succession Unique
What to Expect if Your Parent Dies Without a Will in Louisiana  
Who inherits when someone dies in Louisiana?

Question 20

How to Probate a Will in Louisiana

Accepted Answer

In order to probate a last will and testament in Louisiana, you must first open a succession in court. A petition to probate the last will and testament is filed along with the last will and testament and presented to the court for probate.  In most instances, no hearing is necessary with the court to have the last will and testament probated.

Special Rules for Handwritten Wills

If the last will and testament is a handwritten last will and testament, additional evidence will be necessary to prove the handwriting on the last will and testament is that of the decedent.  This is usually handled by providing affidavits to the court.

Contested Wills

If the last will and testament is contested or challenged, the court will likely require a hearing before the court and require witnesses and evidence to be submitted to prove or disprove the last will and testament.

How We Can Help

If you've been named the executor of a loved one's estate, Scott Law Group, Estate & Probate Division can guide you through the process and help resolve any conflicts between heirs that may arise. We assist hundreds of families in New Orleans and throughout Louisiana each year with their estate and succession issues, so we've seen every situation you can imagine. Call our office today to schedule a consultation.

Question 21

How to Sell Property After a Loved One Passes Away

Accepted Answer

We always recommended that our clients plan ahead and complete the proper estate planning documents before their own passing or the passing of a loved one; however, many of our clients are people who suddenly find themselves managing and inheriting property that has been passed down several generations. In most cases, the property has simply changed names at the Tax Assessor&rsquo;s Office without any succession or legal proceedings transferring the title as required by law.

Steps to Legally Sell Property From a Loved One's Estate

If you find yourself in charge of taking care of the estate of a loved one, there are several important steps to take before you can successfully sell their real estate or property. 


 Open a succession. In Louisiana, the term &ldquo;succession&rdquo; is used to refer to the legal process of passing ownership from a decedent (the person who passed away) to their beneficiaries, legatees, or heirs, and closing out their estate.

 
 There are several different types of successions in Louisiana: small successions, simple possessions, and successions under administration.
 Some successions involve a Last Will and Testament, which is called a &ldquo;testate&rdquo; succession, and a succession without a Last Will and Testament is called an &ldquo;intestate&rdquo; succession.
 Each estate is different, and each type of succession applies to each various type of estate. At Scott Law Group, our Succession Attorneys are experienced, dedicated, and ready to assist you every step of the way in whatever type of succession your loved one&rsquo;s estate requires.
 
 
 Transfer any titles from the decedent to the heirs or legatees. The title of any property, real estate or otherwise, must change to the heirs and legatees of the decedent for there to be a sale of the property. Most successions simply place the heirs or legatees of the decedent in possession of the decedent&rsquo;s property. If there is to be a sale of the property, though, the property must be transferred out of the decedent&rsquo;s name and to the parties participating in the sale. This sometimes involves title work and land records transfers, all of which we handle here for you at Scott Law Group.
 Have patience. While most successions can be handled within a relatively short amount of time, there is always a chance that you may run into complications with the estate or uncooperative family members. Everything takes time when a sale of property is involved, and sometimes depending on the type of succession, the court requires certain formalities before a sale can even be started. For this reason, it is highly recommended that you seek the counsel of an experienced Succession Attorney.
 Proceed with the sale. Once the heirs or legatees are placed into possession of the property or the court has approved a sale, the sale of the property may proceed!
 Close the succession. Once the sale is completed, the succession can be closed.


What to Do When Your Spouse Has Passed Away

If the loved one who has passed was your spouse, you may not be able to stay in your home if the property was purchased by your spouse prior to your marriage or the property was inherited by your spouse. In Louisiana, without the proper estate planning, the surviving spouse does not automatically inherit the deceased spouse&rsquo;s property. To avoid such a predicament, seek the counsel of an estate planning attorney in advance.

Contact Us Today

Scott Law Group, Estate & Probate Division helps hundreds of families in New Orleans and throughout Louisiana every year with their estate and succession issues. We understand how difficult it can be to handle the legal aspects of settling an estate while grieving a loved one and are committed to making the process as simple as possible for our clients. Call our office today to discuss your options and how we can guide you through the process that makes the most sense for your situation.

Question 22

Inheritance Rights of Unborn Children in Louisiana

Accepted Answer

According to Louisiana law, a successor, or someone who inherits property, must exist at the time the decedent dies. In most cases, this law is easy to follow. However, what happens when a child is born after a parent dies? 

Children Conceived Before a Parent&rsquo;s Death

There are situations where a child is conceived before a parent&rsquo;s death but born after a parent dies. In these tragic situations, the living parent is often left wondering whether the child has any inheritance rights under Louisiana law.

Louisiana law is clear in this type of situation. According to Article 940 of the Louisiana Civil Code, a child who is conceived before a parent&rsquo;s death and born after a parent&rsquo;s death is considered to have existed at the time the parent died and, thus, has the same inheritance rights that the child would have had if the child had been born before the parent died.

Children Conceived After a Parent&rsquo;s Death

In limited circumstances, a child who is conceived after a parent&rsquo;s death may also inherit property. In many situations, a child who is born to a predeceased parent may inherit property if:


 The parent who died left written authorization for his surviving spouse to use his gametes
 The child is born to the surviving spouse within three years of the father&rsquo;s death.


Protect Your Child&rsquo;s Inheritance

As a new parent, you have a lot of new responsibilities. We know that you want to protect your child physically, emotionally, and financially, and that it is often overwhelming to do all of these things at once. Our Louisiana succession lawyers might be able to help you if your baby&rsquo;s parent died before your baby was born. Call us, or fill out our online contact form today to learn about your child&rsquo;s legal options.


 
 
 
 Related links:

 
 Succession Still Needed for Only Child
 Who inherits when someone dies in Louisiana?
 Can I stay in my spouse&rsquo;s home after he dies?

Question 23

Intestate Laws in Louisiana

Accepted Answer

Like many states, Louisiana has a set of default rules that will apply to determine what will happen to your property if you die without a Last Will and Testament. For some people, the default rules that kick in are sufficient to carry out their wishes and as such there is no need for having a Last Will and Testament. However, an understanding of these rules is recommended to make sure that your wishes can be carried out under these default rules of Louisiana succession.

Louisiana's Intestate Laws

Under the default succession rules in Louisiana, community property and separate property are handled differently. Generally, community property assets are things that were acquired during the marriage of the decedent and his or her spouse that jointly belong to the decedent and his or her spouse. Those assets which are not community property are considered separate property assets of the decedent.

Many people do not know that the default rules do not favor a surviving spouse. If you die without a will, your separate property will first go to your children, and if you do not have children, your separate property will go to your brothers and sisters, and if they are deceased it will go to your parents. It is only in the event that you do not have children, or parents, or siblings that your spouse will acquire your separate property from your succession. If you wish to avoid this situation, proper planning is necessary.

Community property is handled somewhat differently under the default rules. Again, however, your surviving spouse is not favored. The default rule provides that the ownership of your community property will go to your children who will then co-own the community property with the surviving spouse. It is only if you have no children that your spouse will receive your community property from your succession.

Although your children inherit your community property, the default rules do grant your surviving spouse the right to use your community property until his or her death or until remarriage, whichever occurs first. This right to use the community property is known as a spousal usufruct in Louisiana.

Creating an Estate Plan That Fits Your Needs

This is just a brief explanation of the default rules that apply in Louisiana when someone dies intestate, meaning without leaving a will. If these default rules do not accomplish what you want to happen to your property after you are gone, advanced planning and the preparation of a will is needed. Contact our office to develop your estate plan today.

Question 24

Louisiana Ancillary Probate

Accepted Answer

Many people own property in more than one state. Your loved one, for example, may have owned a vacation home or business property in New Orleans and lived in another state. When this happens, a probate case is opened in the state where your loved one lived, but that state doesn&rsquo;t have jurisdiction over Louisiana property. Accordingly, you will need to open an ancillary probate case in the Louisiana parish where your loved one owned property. 

How Ancillary Probate Works

Ancillary probate cases are different from other Louisiana succession cases. For example, to open an ancillary probate case:


 You do not need to probate the will formally. That will happen in the domiciliary probate state, which is the state where your loved one lived. In Louisiana, you will need to provide an authenticated copy of the will.
 The administrator or executor of the estate doesn&rsquo;t automatically have the authority to handle the ancillary probate in Louisiana. A personal representative must be appointed by a Louisiana court and may end up being the same person serving as the administrator or executor in the other state.


Once an authentic copy of the will is provided to the Louisiana court and a personal representative is appointed by the court, the ancillary probate case will follow the general rules for a Louisiana succession.

How a Louisiana Succession Lawyer Can Help You

Your family may already be working with a skilled probate lawyer in the state where your loved one lived. However, Louisiana laws are unique, and it is critical that you consult an experienced Louisiana succession lawyer to make sure your loved one&rsquo;s property passes according to the terms of the will.

If you have any questions about what to do next, please contact our experienced Louisiana succession lawyers today to schedule an initial consultation to discuss your ancillary probate issues. We will use our experience to resolve the issues efficiently and in the most cost-effective way. Contact us today by phone or our online contact form.


 
 
 
 Related links:

 
 Roles of Estate Administrators and Executors in Louisiana
 The Benefits of Hiring a Louisiana Succession Lawyer
 How to Sell Property After a Loved One Dies

Question 25

Living Trusts in Louisiana Probate

Accepted Answer

A common question we hear from clients planning their estate: "If I set up a living trust, can I avoid probate entirely in Louisiana?" The short answer is: yes, for property properly placed in the trust, but with important caveats specific to Louisiana's civil-law tradition. Living trusts work in Louisiana, but they work differently than in most other states, and using them correctly requires understanding those differences.

This page explains what a living trust is, how Louisiana treats trusts differently from common-law states, what a trust can and can't accomplish for avoiding probate (succession), and when a trust is (and isn't) the right choice for Louisiana residents.

What a living trust is

A living trust (also called an inter vivos trust) is a legal arrangement created during the settlor's lifetime in which:

The settlor (the person creating the trust) transfers property into the trust
A trustee holds legal title to the trust property and manages it according to the trust document
One or more beneficiaries receive the benefit of the trust property, either immediately or on specified conditions
Upon the settlor's death (or another triggering event), the trust property passes to the beneficiaries according to the trust's terms, without going through succession

The key advantage: property held in a valid trust at the settlor's death passes under the trust's terms, not under succession law. This avoids probate, can provide privacy (trust documents aren't public records like probated wills), and can create more flexible distribution structures.

Louisiana is different from common-law states

Living trusts are ubiquitous in common-law states like Texas, California, and Florida. Louisiana's civil-law system treats trusts somewhat differently:

Louisiana's Trust Code

Louisiana has its own Trust Code (La. R.S. 9:1721 and following) that governs trusts created under Louisiana law. Louisiana trusts are generally valid and useful, but they operate under specific statutory rules that differ from the Uniform Trust Code adopted by many common-law states.

Some common-state trust structures don't work in Louisiana

Certain trust structures that work elsewhere &mdash; particularly certain arrangements involving forced heirs &mdash; have specific Louisiana rules. For example:

Trusts that try to dispossess a forced heir of their legitime face Louisiana-specific challenges
"Spendthrift trusts" have Louisiana-specific rules about creditors' rights
Revocable trusts work but with specific formalities

Real estate in a trust works differently

In common-law states, transferring a house into a trust is a routine deed transaction. In Louisiana, real estate is also transferable to a trust, but Louisiana's public records requirements mean the trust must be recorded properly to be effective against third parties.

What a living trust can accomplish in Louisiana

Avoid succession for trust property

Property titled in the name of a valid Louisiana trust at the settlor's death passes under the trust document, not through succession. This means:

No need to open a full succession for trust property
No court filings, no descriptive list, no Judgment of Possession for that property
The successor trustee simply takes over per the trust terms
Real estate titled in the trust doesn't need succession-based recording

This can dramatically speed up asset transfer and reduce costs.

Maintain privacy

Probated wills become public court records. Trust documents generally don't. A trust can keep the details of family wealth transfer out of public view.

Provide for continued management during incapacity

A revocable living trust can continue operating through the settlor's incapacity. The successor trustee takes over automatically, without needing a court to appoint a guardian or interdiction proceeding.

Enable conditional or staggered distributions

Wills can only create certain kinds of conditional distributions. Trusts can create more flexible structures &mdash; distributions tied to age, education, marriage, or specific life events. This is particularly useful for young beneficiaries or beneficiaries with spending or addiction issues.

Protect beneficiaries' eligibility for government benefits

A properly-drafted special needs trust can allow a disabled beneficiary to inherit without losing Medicaid, SSI, or other means-tested benefits. This requires specific Louisiana-compliant trust provisions.

Provide liability protection

Certain irrevocable trust structures can protect trust assets from the beneficiaries' future creditors, including potential divorce settlements or lawsuit judgments.

What a living trust cannot do in Louisiana

Avoid forced heirship

A Louisiana resident cannot use a trust to fully disinherit a forced heir (under 24 or permanently incapacitated). Louisiana's forced heirship rules (La. C.C. art. 1493) reach into trust planning. Complex trust structures may address forced heir interests in specific ways, but a simple "all to my new spouse in trust" doesn't work if a forced heir exists.

Avoid Louisiana estate tax

Louisiana has no estate tax, so this isn't really an issue in Louisiana (unlike some states with state estate or inheritance taxes). Federal estate tax applies only to large estates (over ~$13M in current law) regardless of whether property is in a trust.

Replace a will entirely

Even with a comprehensive living trust, you still need a "pour-over will" to handle:

Property that never got transferred into the trust
Property you acquire after the trust is created but don't move into the trust
Naming guardians for minor children
Directives for disposition of property not in the trust

Automatically avoid probate for all your property

A trust only avoids probate for property titled in the trust's name. If you create a trust but never transfer your house, bank accounts, or investments into it, those assets still pass through succession. "Funding" the trust &mdash; actually moving assets into it &mdash; is often overlooked.

Automatically protect against creditors

Revocable trusts (which you can change or undo) generally don't protect assets from the settlor's creditors. Only certain irrevocable trust structures provide creditor protection, and even those have Louisiana-specific limitations.

Revocable vs. irrevocable trusts

Revocable trusts

The settlor retains the right to modify or terminate the trust. The settlor typically acts as their own trustee during life. Advantages: flexibility, ability to change plans. Disadvantages: no creditor protection, no tax benefits. Most Louisiana living trusts are revocable during the settlor's life and become irrevocable at death.

Irrevocable trusts

Cannot be changed (or only under narrow circumstances). Used for: creditor protection, Medicaid planning, specific tax benefits, long-term family wealth planning. Disadvantages: loss of control, tax complexity, can't "unwind" if circumstances change.

Most Louisiana residents doing basic estate planning start with a revocable trust.

The funding problem

The biggest real-world problem with living trusts is funding &mdash; actually transferring assets into the trust. Common funding failures:

House is owned in the settlor's name, not the trust's name at death
Bank accounts are in the settlor's name, not the trust's name
Investment accounts are titled to the settlor, not the trust
Vehicle titles are never changed
New assets acquired after the trust is created aren't retitled

When assets aren't properly funded into the trust, they pass through succession at death &mdash; completely defeating the purpose of the trust. The "pour-over will" can address this, but the pour-over requires succession, which negates the probate-avoidance benefit.

Proper funding is an active, ongoing process, not a one-time setup.

When a living trust is a good idea

Substantial real estate holdings, especially multiple parcels or out-of-state property
Privacy concerns about what's in your estate
Desire to continue managing assets through incapacity without court proceedings
Blended family needing specific, non-default distribution
Special-needs beneficiary whose inheritance must be structured for government benefits eligibility
Substantial wealth where the cost of the trust is outweighed by the cost of full successions across multiple properties and jurisdictions
Business interests where continuity of management is critical

When a living trust may not be needed

Simple estate with a single primary asset (a house and a bank account)
All significant assets transfer by beneficiary designation (retirement accounts, life insurance)
Standard married-with-children family where default rules work fine
Budget constraint: a proper trust typically costs $1,500&ndash;$4,000 to set up, far more than a basic will
Young family where circumstances will change significantly and rigidity isn't helpful

For many Louisiana families, a well-drafted notarial testament plus proper use of POD/TOD designations, retirement beneficiaries, and life insurance beneficiaries accomplishes most of what a trust would without the complexity and funding burden.

Typical Louisiana living trust structures

Basic revocable living trust

Settlor is trustee during life. Successor trustee takes over at death or incapacity. Property passes to named beneficiaries per the trust. Common for married couples with straightforward wishes.

Joint revocable living trust

Married couple creates one trust together. Simplifies administration but has specific Louisiana community-property implications. Less common than separate trusts for each spouse.

A/B trust (bypass trust)

Splits into two trusts at first spouse's death: a marital trust for the surviving spouse and a credit-shelter trust for the children. Used to maximize federal estate tax exemption for ultra-high-net-worth couples. Less common now that the federal exemption is high.

Special needs trust

Protects a disabled beneficiary's government benefits. Must be drafted to specific federal and Louisiana requirements.

Irrevocable life insurance trust (ILIT)

Holds life insurance policies to remove them from the insured's taxable estate. Useful for large estates where federal estate tax is a concern.

Testamentary trust (created by will)

Not technically a living trust, but worth mentioning: a will can create a trust that springs into existence at the testator's death. Useful for specific situations but doesn't avoid probate.

Frequently asked questions

Will a living trust avoid probate in Louisiana?

For property properly titled in the trust, yes. For property not titled in the trust, no &mdash; that property still goes through succession. Proper funding is critical.

Do I still need a will if I have a living trust?

Yes. A pour-over will handles property that isn't in the trust, names guardians for minor children, and provides backup for things the trust doesn't cover.

Can I be my own trustee?

For a revocable living trust, yes &mdash; most settlors serve as their own trustee during life. A successor trustee takes over at death or incapacity.

What does it cost to set up a Louisiana living trust?

Basic revocable trusts typically cost $1,500&ndash;$4,000 to establish. Complex trusts with tax planning or irrevocable features can cost $5,000&ndash;$15,000. Ongoing funding takes additional time and sometimes fees (retitling deeds, updating account registrations).

Can a trust override my spouse's rights?

Only partially. Louisiana's community property rules and surviving spouse protections still apply to some extent. A trust can direct where property goes after death, but can't fully eliminate spousal rights without specific planning and (sometimes) spousal consent.

Can a trust protect my assets from creditors?

Revocable trusts generally cannot. Irrevocable trusts can provide some creditor protection with proper structuring, but Louisiana's rules are specific and should be reviewed by an attorney.

What happens if I set up a trust but don't fund it?

The trust exists but is largely useless. Assets not titled in the trust's name pass through succession at death. The trust's purpose &mdash; avoiding probate &mdash; is defeated.

Can I move out-of-state property into a Louisiana trust?

Yes, but the transfer must follow the rules of the state where the property is located. Out-of-state real estate in particular has its own deed and recording requirements.

Is a trust recorded publicly?

The trust document itself typically isn't recorded. But deeds transferring real estate into or out of the trust do get recorded in the parish land records. Trust existence can be inferred from those records, though the trust's terms usually aren't public.

How often should a trust be reviewed?

Every 3&ndash;5 years, or more often after major life events (marriage, divorce, birth, death, significant asset changes, move to another state).

Living trusts can be powerful estate planning tools for the right Louisiana residents &mdash; but they're not right for everyone, and they require ongoing maintenance to work properly. If you're considering whether a living trust makes sense for you, or if you already have one and want to make sure it's properly set up, contact Scott Law Group - Estate Counsel or call us at (504) 264-1057. A short consultation can often identify whether a trust is worth the investment in your specific situation.

This article provides general information about Louisiana trusts and is not legal advice. Trust planning is highly fact-specific and requires review by a qualified Louisiana attorney.

Question 26

Limited Time to Sue a Succession Representative

Accepted Answer

Louisiana law establishes a set amount of time to bring a lawsuit. In many states, this is known as the statute of limitations; however, in Louisiana, this legal deadline is known as prescription.
If you have a legal issue with the succession representative of an estate, the prescriptive period varies depending on the circumstances of your claim. If important to understand all deadlines related to succession and how to protect your rights if you think you have a legal claim against a Louisiana succession representative. 
Ten Year Prescription for Breach of Fiduciary Duty
Succession representatives have a fiduciary duty to the estate. That means, succession representatives must act in the best interests of the estate. Succession representatives who fail to perform essential duties, act in their own self-interest, or commit willful misconduct breach their fiduciary duty.
An heir may seek to remove the succession representative or file a lawsuit for damages caused by the succession representative&rsquo;s breach of fiduciary duty.
Heirs who choose to file a lawsuit for damages based on a succession representative&rsquo;s breach of fiduciary duty generally have ten years to file a lawsuit. However, there are some exceptions to this rule. For example, the ten-year period may be extended if the disputed actions took place before the succession representative was formally confirmed into the position. In that case, a Louisiana court may begin the ten-year prescriptive period from the date the succession representative was confirmed. Following the confirmation, the representative had a duty to try to recover money as well as fix mistakes or deliberate acts of misconduct. Therefore, the courts have held that the prescriptive period may be ten years from the date the person was confirmed as succession representative.
Two Year Prescription in Other Cases
In some cases that do not involve a breach of fiduciary duty, the amount of time to file a lawsuit against a succession representative is limited to two years. Additionally, a two-year deadline may apply to situations involving certain actions taken by the succession representative that were beyond the succession representative&rsquo;s authority. For example, there is a two-year prescription for certain transactions related to encumbrances and leases.
Don&rsquo;t Miss a Critical Deadline
There are strict guidelines for how long you have to file a lawsuit, and Louisiana law is filled with difficult to understand legal language and concepts. We urge you to speak to a lawyer as soon as you discover a potential legal concern with a succession representative. Our experienced Louisiana estate litigation attorneys will thoroughly review all aspects of succession, make sure that all legal deadlines are met, and advise you of all of your legal options.
A successful estate litigation case will mean that your loved one&rsquo;s wishes are honored and that all potential heirs are treated fairly. We can hold the succession representative accountable. If the succession representative breached their duties, the court may require that the property be recovered or the succession representative reimburse the estate for any losses.
Contact Us
Each year the experienced estate litigation lawyers at Scott Law Group - Estate Counsel help hundreds of families throughout Louisiana. We have likely handled a case similar to yours, but even if we haven&rsquo;t, we have the skill and experience to get you the answers you need, so you can make the right legal choices before the prescription period ends. Your case may not be easy, but your loved one&rsquo;s estate is worth fighting for.
We invite you to learn more today by contacting us to discuss your succession dispute. We can be reached by phone or fill out our online contact form to have a member of our team contact you.




Related links:

Roles of Estate Administrators and Executors in Louisiana
How Executors Are Paid in Louisiana Probate Cases
Our Louisiana Probate Attorneys Make the Succession Process as Quick and Easy as Possible

Question 27

Liability for a Deceased Spouse&#8217;s Debts

Accepted Answer

The cards were only in her name but the credit card companies keep calling me for payment. Do I have to pay the bills in her name?

Spouses Aren't Liable for Separate Debt

This issue sometimes arises after the death of a spouse, when the surviving spouse starts going through the mail and discovers for the first time that their deceased spouse had credit cards or other debts they did not know about. Many times the amounts owed on these bills have high balances that the surviving spouse simply cannot afford to pay. The surviving spouse quickly becomes concerned whether or not he or she is liable for the debt the deceased spouse left behind.

If the credit card or debt is something that was solely in the name of your deceased spouse and you never signed anything agreeing to be liable for it, as a general rule you will not be personally liable for the bill.

This is true of credit cards, personal loans, car notes, business debts, mobile phone contracts, and other bills. Such items are debts of your deceased spouse and become liabilities of his/her estate and the creditor must seek payment through the succession proceeding.

An Important Caveat

There is one caveat, however, that you must be aware of. Although the creditor cannot pursue you personally for payment of the bill, the creditor is permitted to pursue and collect against any community assets you owned with your deceased spouse.

For instance, even though you are not personally liable, the creditor may nevertheless be able to garnish a bank account that was jointly owned between you and your deceased spouse.

The rule of law in Louisiana permits creditors to pursue community property to satisfy both separate and community obligations. As such, even though you are not personally liable, it may not be prudent to ignore the bill collectors of your deceased spouse if it puts your community property at risk for being taken.

How We Can Help

Scott Law Group Law, Estate & Probate Division helps families across Louisiana settle the estates of their loved ones. If you have questions about the division of assets and liability for debts after the death of your spouse, call our office today to schedule a consultation.

Question 28

LA Succession Without Administration

Accepted Answer

Some Louisiana estates can be managed without a succession administrator or executor being appointed to carry out the succession. These situations are known as succession without administration or &ldquo;Simple Putting in Possession.&rdquo; 

Succession Without Administration&mdash;With a Will

If your loved died with a valid will, succession without administration may occur if everyone named in the will is competent or has legal representation, if everyone named in the will accepts the succession without conditions, and if no creditors request an administration.

Even though everyone named in the will agrees on a succession without administration, you may still benefit from contacting a succession attorney. An attorney can prepare the required pleadings to open the estate with the necessary signatures, attend the succession hearing, and obtain a Judgment of Possession to transfer ownership of the decedent&rsquo;s property.

While the court will not appoint a succession administrator, your loved one likely named a succession administrator in his will. If the decedent named a succession administrator, the court will require that person to join in the Petition for Probate of Testament.

Succession Without Administration&mdash;Without a Will

A succession without administration is also possible if a person dies without a will. In Louisiana, an intestate succession without administration may occur if:


 The succession is &ldquo;relatively free of debt.&rdquo; A succession is considered relatively free of debt if the only debts include the administration of the estate, mortgages that are current, and other debts that are small in comparison to the succession&rsquo;s assets.
 The required people sign the petition to the court. This includes all heirs who are mentally competent or legal representatives of incompetent heirs or the surviving spouse in community if all of the heirs are incompetent and no legal representative is appointed for them.


Succession without administration is just one type of succession in Louisiana. To find out what type of succession is right for you, please contact us today. Our Louisiana succession lawyers can advise you of your options and guide you through the process that makes the most sense for your situation.


 
 
 
 Related links:

 
 How long does a Louisiana succession take?
 Succession Cost in Louisiana
 Potential Family Conflicts When Settling a Louisiana Estate

Question 29

LA Succession for Out-of-State Wills

Accepted Answer

The answer to this question may be yes or no, depending on the exact circumstances of your situation. If your parent&rsquo;s will was created in a different state than where they died, you should first contact an experienced Louisiana succession lawyer. Our Louisiana succession attorneys can review all of the information relevant to your loved one's potential succession case to help you make the right decisions. 

Important Information Needed

Important information is needed to decide how you should proceed with settling your loved one's estate, including:


 How and where the will was made. Generally, Louisiana law recognizes wills that were made and executed in accordance with the law of another state. However, if the will does not meet the other state's legal requirements, the will would not be considered valid in Louisiana, and the succession may proceed according to Louisiana's laws of intestacy.
 Whether Louisiana or the other state is the appropriate place for probate. The state where probate should occur may depend on your parent's state of primary residence. Your parent may have been in Louisiana at the time of death but have been an official resident of another state. If probate occurs in another state, an ancillary probate or succession case may occur in Louisiana if your parent owned property in Louisiana. The rules for ancillary probate are different than for a typical succession case.


Get All of Your Succession Questions Answered

You don't want to make mistakes that could cost your parent's estate and your parent's heirs a lot of money. Instead, we encourage you to contact our experienced succession attorneys to learn more. Each year, we help hundreds of families throughout Louisiana with their succession issues. We will give you information that you can rely on and help you resolve Louisiana succession issues efficiently and cost-effectively. Don't delay! You can chedule an intitial consultation by phone or completion of our contact form.


 
 
 
 Related links:

 
 Is an out-of-state will valid in Louisiana?
 Types of Successions in Louisiana
 Benefits of Hiring a Louisiana Succession Lawyer

Question 30

Payment of Last Wages and Benefits in Louisiana

Accepted Answer

The money, leave time, and benefits that your spouse earned but did not receive before death should not be lost. Your spouse worked for that income, and the employer should not keep it.  

Louisiana Law Regarding Last Wages

Income earned but not received before death is addressed in LA Rev Stat &sect;9:1515. It explains who gets the money and how.

Who Gets the Money

The law allows the employer to provide the wages and other benefits to the deceased employee&rsquo;s surviving spouse unless divorce proceedings were initiated before death. If there is not a surviving spouse or if divorce proceedings were pending at the time of death, the employer may pay wages and other benefits to any child of the decedent who is 18 years of age or older.

How to Get the Money

The employer cannot provide wages and benefits automatically to the surviving spouse or adult child. Instead, before paying the spouse or adult child who is requesting the payment, the employer must require the person making the request to execute a document. The document must be signed by two witnesses and include:


 The name, address, date of death, and place of death of the deceased employee
 The relationship of the person requesting the payment to the deceased employee
 The name and address of the surviving spouse and any surviving children
 Any other information the employer requests


With a document that has the required information and is executed before two witnesses, the employer may issue the wages and benefits from the last paycheck without any court proceedings or judgments.

If outstanding wages are issued in this way, it is not the employer&rsquo;s responsibility to determine whether the wages are separate property or community property or whether inheritance taxes are due. However, it is the employer&rsquo;s responsibility to forward an affidavit that contains the name of the decedent, the amount paid, the name of the recipient. and a copy of the release document to the secretary of the Department of Revenue within 10 calendar days of releasing the money.

If You Have Questions About Your Spouse&rsquo;s Estate

Louisiana spouses do not have the same rights to inheritance as spouses in other states. To make sure that you are treated fairly and get all of the property to which you are legally entitled, we encourage you to contact our Louisiana succession lawyers today. You can reach us by phone, or through our online contact form to have us contact you.


 
 
 
 Related links:

 
 Access to Bank Account or Wages After a Loved One&rsquo;s Death
 Can I stay in my spouse&rsquo;s home after he dies?
 Liability for a Deceased Spouse&rsquo;s Debt

Question 31

Real Estate Gift From Ancestor Intestate Succession

Accepted Answer

The answer depends on whether your loved one had children.

Louisiana, like other states, has specific laws about what happens to property when someone dies without a will. These laws are known as intestacy laws. In Louisiana, intestacy laws generally work as follows:


 Community property. Community property, or property that was acquired during marriage and owned jointly by spouses, usually goes to the surviving spouse if the couple had no children. If there are children, the children typically become co-owners of the property with the surviving spouse.
 Separate property. Typically, separate property goes to family members in the following order: children or grandchildren, parents and siblings, spouse, ascendants other than parents, and then more distant relatives.  


However, there are exceptions to these general rules.

Special Rules for Real Estate Gifts From Parents and Grandparents

If a person receives real estate as a gift from a parent, grandparent, or another ancestor, the usual rules of intestacy do not apply to the real estate. The usual intestacy rules will apply to other property, but the gifted real estate will go back to the ancestor who made the gift if the person who dies does not have children.

Understand How the Intestacy Laws Apply Now

Intestate succession can be complicated, particularly when gifts of real estate are involved. It may take a lot of time and effort to figure out what is supposed to happen to all of your loved one's property. For many people, the work of figuring out how to comply with Louisiana's intestacy laws is overwhelming, but you don't have to do it alone.

Our Louisiana succession lawyers are here to help you and to make sure that everything is settled as quickly as possible and distributed fairly. To learn more about your rights and what to do after a loved one dies without a will, contact us today to get started on your case.


 
 
 
 Related links:

 
 How to Classify Property in Louisiana Succession Cases
 Determining a Spouse's Share in Intestate Succession
 Can I stay in my spouse's home after he dies?

Question 32

Potential Remedies in a Case Against a Trustee

Accepted Answer

Trustees have legal duties. If you are a trust beneficiary and a trustee has violated their duties in a way that has caused you harm, you may be able to sue the trustee. However, before you take legal action, it&rsquo;s important to learn the possible outcomes of litigation and to contact an experienced Louisiana estate litigation lawyer to discuss your rights and potential remedies. 
Reasons to Sue a Trustee
Trustees must act in accordance with the terms of the trust and Louisiana law while exercising a fiduciary duty toward the trust beneficiaries. A trustee&rsquo;s duties include a duty of loyalty. The duty of loyalty is central to the trust and requires the trustee to:

Act for the benefit of the beneficiaries within the terms set forth in the trust
Not self-deal or act for their own personal gain
Maintain confidentiality on matters that are not public record
Preserve trust property
Act as a prudent investor
Keep clear and accurate accounts

Additionally, trustees have a duty of impartiality. The trustee must act in a way that is fair and reasonable for all beneficiaries and may not favor one beneficiary above another.
Potential Legal Outcomes If a Beneficiary Sues a Trustee
If a trustee violates their duties, a beneficiary may seek relief in a Louisiana court. Generally, a beneficiary may ask the court:
To Compel the Trustee to Perform Their Duties
You may ask the court to require the trustee to perform their duties in accordance with the trust document and Louisiana law. For example, you may ask the court to compel the trustee to:

Provide you with information about the trust
Provide you with an accounting of the trust property

If the trustee fails to take these actions, your lawsuit may ask that the trustee be removed from the trust, held in contempt in court, and pay any monetary damages that arose from their failure to act.
For Injunctive Relief to Prevent a Trustee From Breaching the Trust
The court has the power to prevent the trustee from taking an action that would breach the trust. As the beneficiary bringing the action, you do not need to meet a standard of irreparable harm to convince the court to issue an injunction.
To Remove the Trustee
A trustee may be removed in accordance with trust documents or by order of the court if the court finds sufficient cause. However, Louisiana law does not clearly define the term &ldquo;sufficient cause.&rdquo; Instead, the term has been defined by the courts in a way that is consistent with trust law. For example, a trustee may be removed if:

The trustee has become disqualified from serving as trustee
The trustee has become incapable of discharging their duties
The trustee has mismanaged the trust
The trustee has failed to perform any duty imposed by law or court order

You only need one of these reasons to seek the removal of a trustee.
For Financial Damages After a Breach of Trust
Louisiana trust law allows beneficiaries to seek monetary damages from a trustee for:

A loss or depreciation in trust property that resulted from a breach of the trust
A personal profit the trustee made from a breach of trust
A profit that the trust would have made if not for a breach of trust

In some cases, your estate litigation lawyer may suggest that you ask the court for more than one of these legal outcomes.
Get Your Questions Answered Before Pursuing Trust and Estate Litigation
As a trust beneficiary, you have a lot at stake in the trust&rsquo;s administration, but you don&rsquo;t have any control over the trust. Even though this can be frustrating, you are not helpless. Our experienced Louisiana estate litigation lawyers can explore all of your legal options and provide you with the help you need to protect your rights. Contact us today to learn more.




Related links:

Four Reasons You Might Sue to Remove an Estate Executor in Louisiana
What happens to trust property in a Louisiana succession?
Glossary of Terms Frequently Used in Louisiana Estate Planning and Successions

Question 33

If I am Not in a Will, Can I Object to the Will?

Accepted Answer

The answer depends on whether you would have the right to inherit property if the decedent (the person who died) did not have a will. If you have the right to inherit property through intestate succession, you may be able to contest the will if you have a legal reason for doing so. 

Who Can Inherit Through Intestate Succession?

Property distribution in an intestate succession depends on the family situation of the decedent. Generally, separate property is distributed as follows:


 First, to the decedent&rsquo;s children.
 Second, to the decedent&rsquo;s siblings, if the decedent had no children.
 Third, to the decedent&rsquo;s parents if the decedent did not have children or siblings.
 Fourth, to the decedent&rsquo;s spouse, if the decedent&rsquo;s parents are deceased.


Community property is handled differently and is generally distributed as follows:


 First, to the decedent&rsquo;s children with the spouse maintaining a usufruct, or life estate interest, in the property.
 Second, to the decedent&rsquo;s spouse, if the decedent has no children.


Reasons to Object to a Will

If you were not named in the will and you may inherit through intestate succession, you need to consider whether you have a reason to object to the will. Some common reasons for objecting to a will include:


 The decedent was under undue influence and was forced or coerced into creating the will.
 The will does not meet the legal requirements for an enforceable will.
 The decedent lacked the mental capacity to create a will.


Unless you are a forced heir, you cannot object to a will simply because you don&rsquo;t like it or think you should have been included.

Get Legal Advice Before Objecting to a Will

Before you object to a Louisiana will, you should know:


 If you have legal standing to bring a case.
 If you have grounds to object the will.
 What the potential outcome would be if your claim is successful.
 How much it might cost to object the will.


Our experienced Louisiana estate litigation attorneys will thoroughly review your claim and answer all of your questions, so you can make an informed decision about what to do next. Please contact us today to learn more about your legal options.


 
 
 
 Related links:

 
 What Happens When Someone Objects to a Will in Louisiana
 What a Louisiana Court Considers When Interpreting a Contested Will
 What Happens When a Will Is Revoked in Louisiana

Question 34

Now Is the Time to Create a Will

Accepted Answer

Writing a will and creating a comprehensive estate plan can be challenging and frustrating. It requires that you think about your own mortality and make difficult decisions. 

However, the consequences of failing to write a will are significant enough to make now the right time to consult an estate planning lawyer. If you die without a will, the State of Louisiana will decide who gets your property. Therefore, if you don&rsquo;t have a will or have experienced a life change since you last wrote your will, it&rsquo;s important that you to consider writing or updating it as soon as possible.

When It&rsquo;s Time to Write a Will

While any time after your 18th birthday is a good time to write a will, you might make creating or amending a will a priority if:


 You don&rsquo;t already have a will. People who are young and healthy don&rsquo;t often think about creating a will. However, a life-changing event or an accident can occur at any time. Therefore, it&rsquo;s essential to create a legally valid will to have in place for your peace of mind and your loved ones&rsquo; future.
 Your financial situation has changed. You may have bought property, invested in stock, or received an inheritance since you created your will. Now, you may want certain heirs to inherit specific property; you may want to add additional heirs; you may want to create trusts; or you may decide to leave some of your assets to a favorite charity.
 You&rsquo;ve been married or divorced. A change in your marital status should prompt a call to your lawyer to discuss your estate plan. Otherwise, your family may be surprised when you die, and your spouse doesn&rsquo;t get everything you intended them to inherit, or your former spouse gets more than you intended.
 You&rsquo;ve become a parent. A will not only allows you to provide for your children financially, but it allows you to name a tutor (also known as a guardian) in case you and your child&rsquo;s other parent both die before your child reaches adulthood.
 Your children are now adults. Your children have different needs now that they are adults. They no longer need tutors, and they no longer need other adults to manage their money. You may have different relationships with your children now than you did during their childhood. Accordingly, you may want to write a new will or revise your will to provide for your adult children.
 You started a business. Your business succession plan may be part of your comprehensive estate plan.


Ultimately, writing a well-drafted will that accomplishes your goals is never a mistake. However, waiting too long to write one may have significant and irreparable consequences for your family and loved ones after you&rsquo;re gone.

Contact an Estate Planning Lawyer to Discuss Your Options

Our Louisiana estate planning attorneys understand that creating a will isn&rsquo;t always comfortable. It&rsquo;s hard to talk about what will happen after you die. However, our lawyers will put you at ease and present all of your options, so you can make informed decisions and create the will and estate plan that meets your needs. Fill-in-the-blank forms and generic templates can&rsquo;t provide you with the same peace of mind that an individualized consultation with an experienced estate planning lawyer can provide you.

We encourage you to take the first step, and contact us at any time. We invite you to call us or complete our online contact form to have us contact you. We will give you our professional opinion about whether now is the right time to create a will, and if it is, we will draft a unique plan that is right for you.


 
 
 
 Related links:

 
 How a Comprehensive Estate Plan Can Protect Your Assets and Your Family When You Die
 What happens to minor children after their parents die in Louisiana?
 What will happen to my property if I die without a will in Louisiana?

Question 35

Louisiana Usufructs Rights and Limitations

Accepted Answer

Usufruct is one of Louisiana's most distinctive legal concepts &mdash; and one of the most frequently misunderstood. Imported from French civil law through the Napoleonic Code, usufruct is a real right that lets one person use and enjoy property while another person legally owns it. It plays a central role in Louisiana successions, estate planning, and family disputes. This page explains what a usufruct is, how it's created, what rights and obligations come with it, and how it affects who inherits what.

If you've been told you have a usufruct, that you "inherited the naked ownership" of something, or that your parent's surviving spouse has a usufruct over your inheritance, this page is for you.

What is a usufruct?

A usufruct is a legal right under Louisiana law (La. C.C. art. 535) that divides full ownership of property into two pieces:

The usufructuary &mdash; has the right to use the property and enjoy its fruits (the economic benefits it produces: rent, interest, dividends, crops) for the duration of the usufruct.
The naked owner &mdash; legally owns the property, but cannot use or enjoy it during the usufruct. Takes full ownership when the usufruct ends.

The easiest way to understand it: usufruct = temporary use right; naked ownership = pure legal title without use. When the usufruct terminates, the naked owner's title becomes full ownership automatically.

How usufructs arise in Louisiana

1. Automatically, under intestate succession law

This is the most common source. When a married Louisiana resident dies without a will and leaves both a surviving spouse and descendants:

The decedent's half of the community property passes to the descendants in naked ownership.
The surviving spouse receives a usufruct over that property (La. C.C. art. 890).

This spousal usufruct continues until the surviving spouse dies or remarries, whichever comes first. At that point, the children (or their representatives) take full ownership.

2. By will

A will can explicitly create a usufruct. A testator might write: "I leave my home to my spouse for life, with naked ownership to my children." This creates a usufruct in favor of the spouse and naked ownership in the children. Unlike the intestate usufruct, testamentary usufructs can be customized &mdash; they can last for a term of years, for the usufructuary's lifetime, or until a specific event.

3. By donation

A person can donate property during their lifetime and reserve a usufruct. For example, a parent might donate a rental property to their child but reserve the right to collect rent for the rest of the parent's life. This is sometimes used in Louisiana estate planning.

4. Over parents' property (La. C.C. art. 892)

When a decedent dies with no descendants but with surviving siblings and at least one parent, the siblings take ownership of the decedent's separate property, and the surviving parent receives a usufruct over that separate property for life. This is a less-common but consequential scenario for families without children.

Types of usufruct

Usufruct for life (most common)

Lasts until the usufructuary dies. The automatic spousal usufruct under intestate succession, and most testamentary usufructs in favor of a surviving spouse, are of this type. If the usufructuary is the surviving spouse, the usufruct also terminates on remarriage.

Usufruct for a term of years

Lasts for a specific period defined in the document that created it. When the term expires, the naked owner takes full ownership even if the usufructuary is still alive.

Usufruct of consumable property vs. non-consumable property (La. C.C. arts. 537&ndash;538)

This is technical but important:

Non-consumable property (a house, a car, stock) &mdash; the usufructuary uses it and returns it at the end of the usufruct. Must maintain it in reasonable condition.
Consumable property (cash, liquor, grain, money in a bank account) &mdash; the usufructuary can spend or consume it, but owes the naked owner equivalent value (or the appraised value at start) at the end of the usufruct. This is why Louisiana spouses can legally spend cash from joint accounts under a usufruct &mdash; but the children's naked ownership gives them a claim for the equivalent value when the usufruct ends.

What the usufructuary can do

A usufructuary's rights (La. C.C. art. 550 and following) include:

Occupy and use the property. Live in the house. Drive the car. Operate the business.
Collect the fruits. Rental income, interest on accounts, dividends on stock, crops on farmland &mdash; all belong to the usufructuary.
Lease or rent to third parties for the duration of the usufruct, though leases extending beyond the usufruct's expected end may be challengeable.
Make reasonable alterations that don't damage the property or change its fundamental character.
Transfer the usufruct itself (not the property, just the usufruct right) to another person, subject to certain restrictions.

What the usufructuary CANNOT do

Sell the property (the naked owner's consent would be required to do that jointly).
Waste or damage the property. The usufructuary has an obligation of "enjoyment as a prudent administrator" (La. C.C. art. 539).
Fundamentally alter the character of the property &mdash; for example, tearing down a house and building a different structure would typically exceed the usufructuary's rights.
Mortgage the property beyond the usufruct. The usufructuary can mortgage their usufruct right (if lenders will accept it), but cannot put a mortgage on the property itself.

What the naked owner can do

Despite not being able to use the property, the naked owner has real rights:

Sell the naked ownership (though buyers are usually scarce &mdash; nobody wants to buy property they can't use).
Inherit it or give it away. Naked ownership can pass through successions and donations like any other asset.
Seek court intervention if the usufructuary is wasting the property.
Receive accountings in some circumstances (particularly for consumable property).
Take full ownership automatically when the usufruct terminates.

Obligations and protections

Security / bond (La. C.C. art. 571)

A usufructuary may be required to provide security (a bond or similar guarantee) to protect the naked owner's interest, particularly when the usufruct is over consumable property. Surviving spouses are typically exempted from this requirement under Louisiana law, but naked owners (often the children) can sometimes force the spouse to post security if the court finds the circumstances justify it.

Inventory

The usufructuary is typically required to prepare an inventory of the property at the start of the usufruct. This protects both sides by documenting what was there to begin with.

Maintenance and repairs

The usufructuary is responsible for ordinary maintenance and repairs (La. C.C. art. 577). The naked owner is typically responsible for extraordinary or structural repairs. The line between "ordinary" and "extraordinary" is frequently disputed.

Taxes and insurance

The usufructuary generally pays property taxes and is expected to keep the property insured. If they don't, the naked owner may have remedies.

When does a usufruct end?

A usufruct terminates when any of the following occurs:

The term specified in the document expires (for term-based usufructs)
The usufructuary dies
The usufructuary remarries (for surviving-spouse usufructs under intestate succession)
The usufructuary renounces the usufruct in writing
The usufructuary and naked owner agree to terminate it
The property is destroyed (the usufruct on insurance proceeds, if any, may substitute)
A court orders termination due to abuse or waste

When the usufruct ends, the naked owner takes full ownership automatically &mdash; no additional court order is typically required, though title to real estate may need to be cleared with a recorded document.

Common situations and disputes

The surviving spouse wants to sell the house

The surviving spouse holds a usufruct but the children (from the decedent's prior relationship) hold the naked ownership. The spouse wants to sell the house and downsize. Neither can do it unilaterally &mdash; they must jointly agree to the sale and divide the proceeds based on the actuarial value of the usufruct. This is a common family negotiation and, in difficult cases, a common reason for litigation.

The children want to force the spouse out of the house

If the children are naked owners and the surviving spouse has a usufruct, the children generally cannot force the spouse out during the usufruct. They own the house on paper, but the spouse has the legal right to live there. Courts take the usufructuary's right seriously.

The spouse "spent all the cash"

This arises when community property includes significant cash (in bank accounts, for example). Under the usufruct, the surviving spouse can spend the cash &mdash; it's consumable property. When the usufruct ends, the children's naked-ownership claim becomes a debt against the spouse's estate for the equivalent value. In practice, this can become a difficult fight if the estate doesn't have sufficient other assets to cover it.

The spouse wants to remarry

Remarriage ends the spousal usufruct under intestate succession (La. C.C. art. 890). This is why many blended-family Louisiana estate plans use a testamentary usufruct that explicitly runs for life (not until remarriage) &mdash; to protect a surviving spouse's stability even if they remarry.

A parent's usufruct over property inherited from a deceased child

Rare but occurs when a decedent leaves no descendants, has a surviving parent, and has siblings. The siblings inherit separate property; the parent gets a usufruct over it for life. Issues arise when the parent and siblings don't agree on how the property should be managed.

Planning around usufruct issues

Estate planning can prevent many usufruct-related disputes:

Customizing the usufruct duration. A will can specify that the surviving spouse's usufruct lasts for life, not just until remarriage, avoiding that common breaking point.
Using a trust instead. A properly-drafted Louisiana trust can achieve similar goals as a usufruct &mdash; giving one beneficiary use and another ownership &mdash; with more flexibility and less court involvement.
Specifying consumable-property rules. A will can waive or modify the usufructuary's obligation to preserve the equivalent value of consumable property, or strengthen the naked owner's protection.
Naming a different usufructuary. The surviving spouse is the default under intestate rules, but a will can name anyone (a sibling, a friend, a trust) as usufructuary.
Planning for remarriage. For clients in second marriages, ensuring the surviving spouse's usufruct doesn't end on remarriage avoids financial cliff-edge moments.

Frequently asked questions

If I have a usufruct, do I have to pay income taxes on the property's income?

Yes. The usufructuary generally reports income from the property on their personal return, because they're receiving the benefit of that income. Consult a CPA for specifics.

Can I sell my naked ownership interest?

Legally, yes. Practically, it's difficult because buyers rarely want to purchase property they can't use for an unknown period. Sometimes naked owners sell to the usufructuary (who can then own full title).

Can I sell my usufruct?

Generally yes, though the sale transfers only your use rights &mdash; it doesn't transfer ownership. Some restrictions apply, and the usufruct still ends when the original usufructuary would have ended it (for example, at your death for a life usufruct).

What happens if the house burns down?

Complex question. The usufruct generally ends with the property's destruction unless insurance proceeds substitute. Specific outcome depends on the usufruct's terms, whether insurance was in place, and who held the policy.

Can my spouse's usufruct be ended early?

In limited circumstances, yes: by remarriage (for intestate spousal usufructs), by the usufructuary's written renunciation, by mutual agreement between the usufructuary and naked owners, or by court order for serious abuse. Normal disagreement between the parties is not enough.

Does a usufruct apply to retirement accounts or life insurance?

Generally no. Retirement accounts and life insurance with named beneficiaries pass directly to those beneficiaries outside the succession, so they're typically not subject to the usufruct that applies to community property. There are edge cases, particularly when the beneficiary designation is the estate itself.

How is the value of a usufruct calculated?

Louisiana uses actuarial tables (based on the usufructuary's age and life expectancy) combined with the underlying asset's value. For a 70-year-old surviving spouse with a life usufruct over a $200,000 property, the usufruct might be valued around 30&ndash;50% of the property value. The specific calculation requires an actuary in disputed cases.

Usufruct issues come up in nearly every Louisiana succession involving a surviving spouse and children from a prior relationship, and in many estate planning situations. If you have questions about a specific usufruct &mdash; whether you're the usufructuary, the naked owner, or trying to plan for one &mdash; contact Scott Law Group - Estate Counsel or call us at (504) 264-1057. Getting the right advice early is usually far cheaper than litigating after a dispute has already begun.

This article provides general information about Louisiana usufruct law and is not legal advice. Specific situations should be reviewed with a qualified Louisiana attorney.

Question 36

Louisiana Lapsed Legacies

Accepted Answer

If your loved one created a will with the intent of providing property to specific heirs, the distribution of property from the estate to an heir is known as a legacy in Louisiana. Sometimes, however, things don&rsquo;t go according to the plan created in the will, and a legacy can&rsquo;t be fulfilled. 

Seven Types of Lapsed Legacies

According to Louisiana law, a legacy lapses when:


 The person who was going to inherit the property (the legatee) dies before the person who created the will (the testator).
 The legatee is legally incapable of receiving the legacy of real estate or personal property when the testator dies.
 The legacy is subject to a specific condition and that condition cannot be fulfilled, or the legatee dies before the condition is fulfilled.
 The legatee is declared an unworthy heir. An unworthy heir is one who intentionally killed or attempted to kill the testator. Before a person can be declared an unworthy heir, someone who shared succession rights with the potential unworthy heir must raise the issue with the court and have the heir declared unworthy.
 The legacy is renounced. In this case, the legacy only lapses to the extent of the renunciation.
 The legacy is declared invalid by the court.
 The legacy is declared null because, for example, the testator included the legacy because of fraud, duress, or undue influence.


What Happens If a Legacy Lapses?

The answer is often complicated, but an heir will inherit the property. An experienced Louisiana succession lawyer will review all aspects of your loved one&rsquo;s will and ensure the property is distributed according to the will&rsquo;s terms and Louisiana law if a legacy lapses.

We encourage you to make sure that the succession process goes as smoothly as possible. Our experienced Scott Law Group can help save you and your family stress and unnecessary expenses as you probate your loved one&rsquo;s estate. To schedule a consultation to learn more about how we can help you, contact us today by phone or filling out our contact form.


 
 
 
 Related links:

 
 How to Probate a Will in Louisiana
 Potential Complicating Factors in a Louisiana Succession
 Contesting a Will in Louisiana

Question 37

Staying in Your Home as a Surviving Spouse

Accepted Answer

My husband died and the house we have lived in for the last 20 years is only in his name, and the bank accounts were all in his name as well. My in-laws want me out of the house and want the money out of the bank accounts. I will be left with nothing&hellip;what do I do?

Poor Planning Can Put You at Risk

Unfortunately, we run into this situation all too often. It comes up with second marriages or when people get married later in life. What happens is that the newlyweds move into a house that was purchased and owned prior to the marriage by just one of the spouses. They live in the house throughout their marriage, treating it as their family home.



Unless proper estate planning is done, the spouse who moved in can find themselves kicked out of the family home by the in-laws or step-children. This is due to the fact under Louisiana law, a surviving spouse does not inherit the separate property of the spouse who passes away. Unfortunately, many couples do not know this and without planning, can result in the surviving spouse facing becoming homeless and penniless as the result of the death of their husband or wife.

Your Right to a "Marital Portion" of Your Spouse's Estate

In order to avoid this unfortunate outcome, Louisiana law recognizes what is known as a &ldquo;marital portion.&rdquo; The law provides that when a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim a &ldquo;marital portion&rdquo; from the succession of the deceased spouse. See Article 2432 of the Louisiana Code of Civil Procedure. The purpose of this law is to prevent a surviving spouse from being left in poverty after having become accustomed to the use of the assets of the spouse who passed away.

In order for a surviving spouse to qualify for the marital portion, the value of the assets of the deceased spouse is compared to that of the surviving spouse. Although there is no concrete test to qualify, as a rule of thumb the surviving spouse will qualify for the marital portion if his or her assets are worth 20% or less of the value of the deceased spouse&rsquo;s assets. As a simple example, assume that a husband dies and the value of his property at the time of his death is $100,000.00. If the surviving wife&rsquo;s assets are worth $20,000.00 or less, she would likely qualify to receive a portion of her husband&rsquo;s assets from his succession.

The amount of the marital portion is set at one-fourth (1/4) of the succession in ownership if the deceased died without children, or one-fourth (1/4) in usufruct for life if the deceased spouse is survived by three or fewer children, or a child&rsquo;s share in usufruct for life if the deceased spouse is survived by more than three children. The marital portion is capped at one million ($1,000,000.00) dollars. The amount of the marital portion may also be reduced by the amount of any property left to the surviving spouse in the deceased spouse&rsquo;s will, and also reduced by the amount of any payments the surviving spouse receives as the result of the death of the spouse which includes life insurance proceeds, social security payments, and pension benefits that come about because of the death of the spouse.

The marital portion is an important right in favor of the surviving spouse that must be considered and asserted in the succession when possible to avoid a surviving spouse falling into poverty.

How We Can Help

Scott Law Group, Estate & Probate Division has helped many clients throughout Louisiana protect their right to a marital portion of a deceased spouse's estate. If your right to stay in the home you shared with your recently deceased spouse is being questioned, call our office today to discuss how we may be able to help you.

Question 38

Sibling Rights When Someone Dies Without a Will in LA

Accepted Answer

Yes, you do have a right to at least some of your sibling&rsquo;s property if your brother or sister died without a will and without a surviving spouse, descendant, or parent. You understandably want to keep your sibling&rsquo;s property in the family, and Louisiana&rsquo;s intestacy laws allow you to do so. 

Sibling Rights in Louisiana Intestate Successions

If your brother or sister dies without a will and does not have a spouse, children (or other descendants), or living parents, you have the right to inherit your sibling&rsquo;s property.

However, you may not inherit all of your sibling&rsquo;s property. You may have to share with your surviving brothers and sisters. According to Louisiana law:


 Surviving siblings share equally in the deceased sibling&rsquo;s separate property if they had both of the same parents as the sibling who died.
 Surviving half-siblings may also inherit property from their sibling. If there are half-siblings, the decedent&rsquo;s separate property is divided equally between the siblings on the mother&rsquo;s side and the siblings on the father&rsquo;s side. In other words, one-half of the property goes to the siblings who are related through the mother, and one-half of the property goes to the siblings who are related through the father, even if there are more siblings through one parent than the other. If some siblings are related through both the mother and father, those siblings may inherit property from both sides of the family.


Even if your sibling died with a surviving parent, you could still inherit property. In this situation, you and your other surviving siblings inherit your deceased sibling&rsquo;s property, but your sibling&rsquo;s parents have a usufruct interest in the property. That means, your sibling&rsquo;s parents may use the property during their lifetime.

However, if your brother or sister was married or had a child, grandchildren, or great-grandchild, you will not inherit anything according to Louisiana&rsquo;s laws of intestacy.

Avoid Complications With the Help of a Louisiana Succession Attorney

Intestate succession cases are often complicated, particularly if there are half-siblings who may inherit property. Our experienced Scott Law Group are here to make sure that all of your rights are protected. Call us, or contact us through this website to get started today.


 
 
 
 Related links:

 
 Potential Family Conflicts When Settling a Louisiana Estate
 Starting the Succession Process in Louisiana
 Types of Succession Proceedings in Louisiana

Question 39

Selling Property After Someone Dies

Accepted Answer

I need to sell real estate that has been in my family for generations. The title company says I need to open succession for my parents in order to be able to sell it. What does this mean and how long will it take?

About the Succession Process

We get this question often. The typical situation that is presented is that the client has a home or real estate that has been in the family and has simply been passed down. Their grandparents may have originally bought the property, and after they passed away the client&rsquo;s parents began using the house. The client is now taking care of the property because their parents have now passed away.



Once we start looking into the history of the property, we discover that the property has simply been &ldquo;passed down&rdquo; from generation to generation and no succession proceeding has ever been opened for either the grandparents or the parents of the client. Now that there is a potential sale of the house to a third party, the title to the property has to be cleared so the sale can take place.



Basically, what needs to happen is the recorded ownership of the property needs to be transferred from the grandparents to the client. This means that successions need to be opened for the deceased family members.



A succession is simply the legal process by which the ownership of property is transferred from one generation to the next.

How We Can Help 

Depending on the circumstances, many times our office can complete the necessary succession proceedings within just a few days if the family members are all cooperative. This allows the client to maintain their closing date for the sale of the property.

Of course, it is always best to take care of any successions well in advance of putting the property on the market to sell to a third party because sometimes the legal process can take time due to complications or problems that might come up relative to the estate of a parent or grandparent.

Contact Scott Law Group, Estate & Probate Division today to schedule an appointment to complete the succession needed to sell your inherited property.

Question 40

Rights of Stepchildren in Louisiana Successions

Accepted Answer

No. A person may love their stepchildren and raise them as their own children. However, Louisiana law does not account for personal feelings or relationships. Instead, the law only considers legal relationships, and unadopted stepchildren are not considered legal heirs in Louisiana. 

What Happens If a Stepparent Dies Without a Will?

State law decides what happens to a person&rsquo;s property if they die intestate or without a will. Children will inherit the person&rsquo;s separate property and community property, subject to a spouse&rsquo;s lifetime interest in the community property. For purposes of intestate succession, children are defined as:


 Children born during a marriage or within 300 days after a marriage
 Children born outside of a marriage, if paternity is established
 Adopted children
 Children placed for adoption
 Grandchildren, if the decedent&rsquo;s child predeceases them and has living children


Whether the decedent has a loving or strained relationship with the stepchildren is irrelevant in determining whether a stepchild can inherit from a stepparent in an intestate succession. Stepchildren do not have any inheritance rights unless the stepparent adopted them.

Can a Stepparent Include a Stepchild in a Will?

Yes. Stepparents may leave property to their stepchildren in their will. Louisiana laws generally accept a last will and testament as long as it:


 Is made without undue influence or coercion
 Is properly executed
 Did not exclude forced heirs


Additionally, stepparents may provide for stepchildren through trusts, life insurance policies, or lifetime gifts.

Contact Us

Heirs and beneficiaries deserve fair treatment during a Louisiana succession. Our Louisiana succession lawyers help hundreds of families throughout Louisiana each year. We would be happy to review your loved one&rsquo;s succession and provide you with an honest and trustworthy assessment. Please call us at (504) 264-1057 or complete our contact form today to get started.


 
 
 
 Related links:

 
 How to Classify Property in Louisiana Succession Cases
 Can a parent disinherit a child?
 Contesting a Will in Louisiana

Question 41

Rights of Children Born Outside of Marriage in LA Successions

Accepted Answer

Children born outside of marriage often have the same inheritance rights as children born during a marriage. However, sometimes the rights of children born outside of marriage are complicated and succession cases contested. 

Understanding the Inheritance Rights of a Child Born Outside of Marriage

A child born outside of a marriage has the same inheritance rights as a child born during, or soon after, a marriage when:


 The child inherits property from the mother. Like all other states, Louisiana recognizes a child&rsquo;s right to inherit property from a mother regardless of the mother&rsquo;s marital status at the time of the child&rsquo;s birth.
 The child inherits property from a father who acknowledged paternity. If an Acknowledgement of Paternity Affidavit was executed prior to the father&rsquo;s death, the child born outside of a marriage has the same inheritance rights as a child born during a marriage.
 The child inherits property from a father whose paternity was proven in court. Once paternity is established in court, a child born out of wedlock has the same rights as children born to married parents.


These rules apply when a parent dies without a will. A parent may also choose to leave a child born outside of marriage an inheritance in a will.

What to Do If Your Inheritance Rights Aren&rsquo;t Clear

After your father dies, you may have questions about your inheritance. Whether you are a child born to unmarried parents or you have a sibling making an inheritance claim, you need to understand your rights.

Each year, our Louisiana succession attorneys help hundreds of families throughout Louisiana. We would be happy to review your parent&rsquo;s succession and ensure that all potential heirs are treated fairly. To learn more about how we can help you navigate your parent&rsquo;s succession in an efficient, sensitive, and cost-effective way, contact us today.


 
 
 
 Related links:

 
 Rights of Children in a Louisiana Intestate Succession
 Can a parent disinherit a child?
 How to Establish Paternity When Parents Are Not Married

Question 42

Requesting a Louisiana Death Certificate

Accepted Answer

Eventually, you will need a death certificate to prove to the court that your loved one died. However, it often takes several weeks or longer to get a death certificate, and there are things that a Louisiana succession lawyer can do to move a succession case along before you have a death certificate in hand.

How to Get a Death Certificate

The Office of the State Registrar is responsible for creating and issuing vital records in Louisiana. Death records are not public in Louisiana, but you may order a death certificate if you are a:


 Relative of the decedent. Relatives include a surviving spouse, mother, father, adult child, brother, sister, grandmother, grandfather, grandchild, or person named in a court proceeding as an immediate or surviving family member.
 Beneficiary. If you are named as a beneficiary of an insurance policy or trust in the deceased person&rsquo;s name, you can order a death certificate.
 Succession representative. If you are a succession representative, then you must provide a certified Letter of Testamentary or Letter of Administration.
 Lawyer. Attorneys must provide credentials and a written declaration indicating that the lawyer is preparing a small succession for the deceased person or is representing one of the parties described above.


A completed application, filing fee, and proper identification must be provided before a death certificate will be issued to you.

Generally, you may request the death certificate:


 In person. You can get a death certificate at Vital Records Central Office, located at 1450 Poydras Street, Suite 400, New Orleans, at participating Louisiana Clerks of Court, or a Vital Records kiosk location.
 By mail. Your mailed request should go to Vital Records Registry, PO Box 60630, New Orleans, LA 70160.


Certain relatives may also request the death certificate by phone, fax, or internet.

Contact a Succession Lawyer Today

If you are the administrator of an estate or have questions about starting a succession, we encourage you to contact our Louisiana succession lawyers today. Each year, we help hundreds of families throughout the state with their succession needs. Allow us to take the stress and confusion out of the succession process for you.


 
 
 
 Related Links:

 
 What to Do Before You Start a Succession Case
 The Benefits of Hiring a Louisiana Succession Lawyer
 What is a Succession?

Question 43

The Aftermath of a Successful Louisiana Will Contest

Accepted Answer

Estate challenges and probate litigation are rarely easy. Even if you have a seemingly open-and-shut case, the outcome of a successful will contest can present unexpected complications, potentially depriving heirs and other beneficiaries of their rightful inheritances.  
Contesting a Will in Louisiana
A will contest is technically a lawsuit. Since a will is representative of the deceased person&rsquo;s last wishes, Louisiana only lets certain interested parties initiate litigation.
In general, the only parties who can contest the provisions of a will are the following:

People with a compelling interest in the will, including named heirs, disinherited beneficiaries, and creditors
People who, under ordinary circumstances, would have a legal right to inherit the decedent&rsquo;s assets through probate or intestacy proceedings

When you challenge the validity or provisions of a Louisianan&rsquo;s last will and testament, you are&mdash;in effect&mdash;claiming the will was not executed in accordance with state law.
The Grounds for Challenging an Estate

Undue influence. The person writing the will, or testator, must freely create the will on their own. If the testator was coerced or misled into writing a will or creating a codicil to a will, the will could be contested on the grounds of undue influence.
Improper execution. A will is only valid if it was executed in accordance with state law. Louisiana only permits the execution of notarial wills, or wills that are typed and stamped by a notary public, and olographic wills, or wills that are written entirely in the testator&rsquo;s own handwriting. If any of the formal, legal requirements for executing a will are not met, the will or any amendments could be dismissed entirely.
Lack of mental capacity. Louisiana law presumes that most adults of sound mind have the right to write a will and make other estate-related decisions. However, if the testator does not understand how their will could affect their assets or impact their estate, they may lack the so-called testamentary capacity needed to execute a Louisiana will.

Under most circumstances, the burden of proof is on the person initiating the will contest.
The Aftermath of a Successful Will Contest

The will could be reformed. When a Louisiana succession court adjudicates a will contest, they have a legal obligation to respect the intent of the testator. If the will contest relates to a single line in the testament or is otherwise easily addressed by a simple amendment, the court may elect to strike the line without restructuring or reforming the entire document.
The will could be replaced. If a new or updated will has been located, the court may allow the decedent&rsquo;s personal representative to commence probate in accordance with the terms and conditions of the alternate will.
The will could be revoked. If the contest results in the will being revoked, and there is no alternate will available, the probate court may be forced to enter the estate into intestacy. In other words, the deceased person&rsquo;s estate will be treated as if they had no will and no estate plan. Intestacy can be disastrous for heirs, since the Bayou State&rsquo;s Code of Civil Procedure mandates that intestate assets be distributed to beneficiaries in accordance with a strict legal formula. In most cases, this legal formula privileges surviving spouses and other close relatives, even at the expense of adopted children, surviving parents, and other loved ones.

Contact a Louisiana Estate Litigation Attorney
The consequences of a will contest must be carefully considered well in advance of filing a lawsuit against the estate. If you believe that a relative&rsquo;s will contains a critical error or omission, ensure that you are afforded the best protection from uncertainty: call Scott Law Group - Estate Counsel at 504-264-1057 today to speak to a legal professional to schedule your initial consultation. 




Related Links:

Is an Out-of-State Will Valid in Louisiana?
What Makes Louisiana Succession Cases Unique  
What to Do About a Missing Will in Louisiana

Question 44

The Benefits of Hiring a Louisiana Succession Lawyer

Accepted Answer

After a loved one dies, you want to settle his estate as quickly and efficiently as possible. Many people turn to professionals for help to avoid succession complications or problems. 

In Louisiana, you may decide between hiring a notary public or an attorney to help you with your succession needs. Notary publics who are not attorneys must pass a test given by the courts to show that they are proficient in legal matters that are within the scope of their authority. Louisiana notary publics can do things that notary publics can&rsquo;t do in many other states. In Louisiana, they can:


 Create and execute affidavits
 Help with small successions
 Help with other legal written, contractual, or transactional needs


A Louisiana Succession Attorney Can Do Even More

While there is a lot that a notary can do for you, there are three essential things that a succession attorney can do that a notary public cannot. Specifically, a lawyer can:


 Provide you with a legal opinion
 Give you legal advice and lay out and advise you of your succession options
 Represent you in court


Our lawyers can help get your succession case moving and resolved as quickly as possible, even when things are complicated. If you have a dispute with a family member, if you can&rsquo;t find your loved one&rsquo;s original will, if the value of your loved one&rsquo;s property is significant, or if other factors might complicate your loved one&rsquo;s succession, we encourage you to talk to an experienced lawyer.

Each year our succession attorneys help hundreds of families throughout Louisiana. We encourage you to call us or fill out our contact form to have us contact you as soon as possible, so you can be sure that your legal rights are protected throughout the succession process.


 
 
 
 Related links:

 
 Types of Succession in Louisiana
 Intestacy Laws in Louisiana

Question 45

Three Choices for Louisiana Succession Heirs

Accepted Answer

If you are an heir in a Louisiana succession case, you have three options to consider. You may:


 Accept the succession unconditionally
 Accept the succession only with the benefit of inventory
 Renounce the succession


It&rsquo;s important to understand these options, so you can best determine the right choice for you when dealing with a succession.  

Accepting a Succession Unconditionally

As an heir, you have the right to accept the property that is being left to you. You may make this acceptance formally in writing or informally by any act that clearly indicates your intent to accept the succession.

Accepting a Succession With Benefit of Inventory

Perhaps you aren&rsquo;t sure about whether or not you want to accept a succession. You have the right to accept a succession with benefit of inventory. This means, you have the right to request an inventory of the succession&rsquo;s assets and debts before you decide whether or not to accept the succession.

Once you accept a succession&mdash;either unconditionally or with benefit of inventory&mdash;you must pay your share of succession debts up to your share of the estate.

Renouncing a Succession

You also have the right to renounce a succession entirely. If you do this, you give up your right to inherit property in the succession. A renunciation must be done in writing.

Deciding Which Succession Choice Is Right for You

If you make no determination about the succession, the choice will be made for you. The court will presume that you accept the succession.

Therefore, it is essential to speak with an experienced succession attorney, so you can make the decisions that are in your best interest.  Each year, we help hundreds of families with difficult succession decisions throughout the state of Louisiana. Please contact Scott Law Group, Estate & Probate Division today at (504) 264-1057. We will advise you on the easiest, most cost-effective way to handle a succession, so that you can be confident in the decisions that you make.


 
 
 
 Related Links:

 
 Who Inherits Under Louisiana Law
 How Long Does a Louisiana Succession Take?
 Types of Succession Proceedings in Louisiana

Question 46

Understanding the Succession Process in Louisiana

Accepted Answer

In Louisiana, a &ldquo;succession&rdquo; is a legal process for wrapping up the financial affairs of a deceased person (decedent). Generally, the process involves identifying and gathering the assets of the decedent, paying the debts of the decedent, and then distributing the decedent&rsquo;s assets to his or her beneficiaries.

The succession/probate process is used to pass ownership of the decedent&rsquo;s assets to his or her beneficiaries. If the decedent left a valid Last Will and Testament, it will need to be presented to a court to be probated so that the persons named as beneficiaries can legally obtain ownership of the property which was left to them. If the decedent had no will, Louisiana law provides default rules as to who inherits from the decedent and who ownership will be passed to in connection with the succession.

Question 47

Using a Codicil to Amend a Louisiana Will

Accepted Answer

A will is a legally binding document that remains valid until it is formally revoked or superseded. While Louisiana law allows for a last will and testament to be amended with a codicil, this document could thrust an estate into uncertainty if it is not properly written and reviewed. 
Understanding Codicils
A codicil is a special, written document that amends a will. Codicils typically explain, modify, or revoke a previous will provision.
Uses of a Louisiana Codicil

Name a new beneficiary
Designate a new guardian for a minor child
Remove an heir from the will
Explain a disinheritance decision

While a codicil can be used to alter a last will and testament in any number of ways, estate planning attorneys usually recommend that it only be used for minor modifications. If a codicil is used to overhaul a will in its entirety, it is often easier to simply re-write the will than to ensure that the codicil does obfuscate the testator&rsquo;s intent.
What Makes a Louisiana Codicil Valid? 

The testator must be at least 18 years of age.
The testator must be of sound mind and free from undue influence.  
The codicil must be in a valid form recognized for testaments.
Typically, scratch-throughs and notes added to a will after it is executed are not valid to change a will and are not legally enforceable.

If you have already submitted or filed a copy of your will with your parish probate court, you should also file a copy of your codicil in the same court. Keep a copy of the codicil alongside your will. 
Can Codicils Be Challenged?
It&rsquo;s possible for a codicil to be challenged just as a will might be challenged and for many of the same reasons.
Common Reasons for Challenging a Louisiana Codicil

The testator was under undue influence. The person writing the will and codicil cannot be pressured or influenced by a third-party into making any specific inheritance decisions. If a creditor, beneficiary, or other interested person believes that the testator was coerced into including a provision or disinheriting an heir, they could challenge the codicil on grounds of undue influence.
The will was not executed in accordance with state law. If one of Louisiana&rsquo;s formal requirements for creating a will and codicil was not fulfilled, the codicil could be challenged. However codicil challenges often have unintended consequences. While they could lead the court to simply dismiss the codicil, they can also lead to the will being scrutinized and cast aside. If the will is discounted in its entirety, the estate could be forced into intestate proceedings.
The testator was mentally incapacitated. Louisiana law presumes that most adults have the mental capacity to create and amend a will. However, if an interested party furnishes compelling evidence that the testator was not of sound mind when they wrote the codicil, the court could be persuaded to strike the specified amendments.

Even bad-faith challenges to a codicil could be costly. If the petitioner does not prevail in court, the personal representative may have to use the estate&rsquo;s resources to defend the codicil. Since probate litigation can be costly and time-consuming, a codicil challenge could drain an estate&rsquo;s resources before beneficiaries ever receive their inheritances.
Contact a Louisiana Succession Attorney
A codicil is not always the best way to update an estate plan. Since codicils can be easily challenged, you should always have an experienced Louisiana estate planning attorney review your revisions before you execute your codicil. Please send Scott Law Group - Estate Counsel a message online, or call us at 504-264-1057 to schedule your consultation.




Related links:

Common Reasons for Litigation Over a Family Member&rsquo;s Estate 
How Multiple Wills Can Complicate a Louisiana Succession 
What Happens When Someone Objects to a Will in Louisiana

Question 48

Trust Property in a Louisiana Succession

Accepted Answer

The answer depends on the type of trust. There are two broad categories of trusts: (1) living or inter vivos trusts; and (2) testamentary trusts. 

Living and Testamentary Trusts in Louisiana Successions

Living trusts go into effect while the person who created the trust (the grantor) is still alive. In many cases, the property included in the living trust passes outside of the succession process and according to the terms of the trust.

A grantor may also create a different type of trust known as a testamentary trust, which is not funded during the grantor&rsquo;s lifetime. Instead, the testamentary trust is included in the grantor&rsquo;s will and only becomes effective when the grantor dies.

Since testamentary trusts are included in the will, they are included in the probate, or succession, process. More than one testamentary trust may be included in the same person&rsquo;s will.

Testamentary trusts are irrevocable, and the property should pass to the beneficiaries according to the terms of the trust as long as the trust was created according to Louisiana law.

When a Testamentary Trust Is Disputed

Maybe you, or another potential heir, are disputing the will, or perhaps there is confusion about how the testamentary trust should be funded. If one of these problems&mdash;or any other potential issue&mdash;arises, it is critical to contact an experienced Louisiana succession attorney.

Every year, our succession and probate legal team helps hundreds of Louisiana families with complicated testamentary issues. We can help your family transfer your loved one&rsquo;s assets to the intended heirs with as little aggravation, stress, and pain as possible. Our goal is to guide your family through the succession process easily and cost-effectively.

If you are interested in setting up a trust or disputing a will, please contact our Louisiana succession lawyers today to schedule an initial consultation. You can reach us by phone, or through our online contact form.


 
 
 
 Related links:

 
 Louisiana Donations Made by Will
 Transferring Property and Assets After a Death in Louisiana
 How to Probate a Will in Louisiana

Question 49

What to Do With Jewelry During Succession

Accepted Answer

If you are an heir to a parent&rsquo;s property, it&rsquo;s important to understand what happens to jewelry after your parent dies. You can avoid a lot of money, frustration, and emotional anguish by making sure that valuable personal assets, such as jewelry, are handled correctly during a Louisiana succession. 

What Happens to Jewelry Depends on the Type of Succession

Different kinds of Louisiana successions have different rules about what happens to estate property.

In a simple possession succession, heirs do not need court approval to take possession of estate property. Instead, the estate will file court pleadings indicating who died, identifying all of the decedent&rsquo;s assets, and naming the heirs who inherit the assets. The court will issue a Judgment of Possession that makes the heirs the new owners of their inheritance. In this scenario, court approval is unnecessary before an heir takes possession of a parent&rsquo;s jewelry. However, it is often advisable to hold onto the jewelry and not to sell it before all debts of the estate are settled and a Judgment of Possession is issued.

Simple possession successions don&rsquo;t work in every situation. Sometimes, a succession by administration is necessary. An executor or administrator must identify the estate debts and assets, pay the debts, and distribute assets to estate heirs according to the specific terms of the decedent&rsquo;s will or the laws of intestacy. After that, the executor or administrator must seek the court&rsquo;s permission to pay debts and distribute assets. Accordingly, jewelry stays in the estate&rsquo;s possession until the executor or administrator has court permission to distribute it to an heir.

Talk to a Succession Lawyer About Your Options

You may have a specific piece of jewelry you are concerned about or you may want to make sure that all of your parent&rsquo;s possessions are distributed fairly. Either way, we encourage you to contact our experienced Louisiana succession lawyers to make sure that everything is distributed efficiently and according to Louisiana law. That way, you can avoid future problems and protect your parent&rsquo;s wishes and your inheritance.


 
 
 
 Related links:

 
 Potential Complicating Factors in Louisiana Successions
 How long does a Louisiana succession take?
 What should be included in a judgment of possession?

Question 50

Validity of Wills From Other States

Accepted Answer

My father died in Louisiana, but his will was prepared in another state. Can I open succession with an out of state will in Louisiana, or will the Louisiana Court recognize the Last Will and Testament drafted in the other state?



Under Louisiana law, a Louisiana court will recognize a will that is executed out-of-state if the will was prepared in a manner and form that would make it valid under the law of the state where it was signed, or under the law of the state where the person who made the will was domiciled at the time he or she signed the will.

Louisiana Recognizes Wills Prepared in Accordance With the Laws of Other States

Let&rsquo;s say that your parent owns a home in Louisiana. Later in life, due to health reasons, your parent moves to Texas to live with your sister who can provide daily care. During the time he or she is living with your sister in Texas, a Texas attorney assists your parent in drafting a will that complies with the form requirements for wills under Texas law, but differs from the format that Louisiana requires. After your parent passes away, a succession is necessary in Louisiana to transfer the family home that your parent owned here.

Although the will is not in the format that Louisiana law requires, a Louisiana court will nevertheless recognize and probate the will since it was prepared in accordance with Texas law.

Sometimes, however, rather than probating the will in Louisiana, a person&rsquo;s succession is actually opened in another state and the will is admitted to probate outside of Louisiana. If there is a need to also open a succession in Louisiana to deal with assets located in Louisiana, Louisiana law permits the family to present a copy of the probated will from the other state and the will shall have the same force and effect as the original probate of a domestic will.

Contact Us for Details

The uniform wills and probate law is found at Louisiana Revised Statute 9:2401 and 9:2421 et seq. respectively. For additional assistance, we invite you to call our office to schedule a consultation.

The questions families ask us, over and over.

Succession & Probate

Community Property 5

Debts & Creditors 3

Executors & Administrators 6

Heirs & Inheritance 24

Succession Basics 5

Other Succession & Probate questions 4

Estate Planning

Trusts 4

Wills 11

Estate Litigation

Other Estate Disputes questions 2