Who will inherit? That is typically the first question asked after someone passes away. The answer to this question depends on a number of different factors that all need to be considered before this question can be answered.

Is There a Last Will and Testament?

The first factor to consider is whether there is a valid last will and testament. Under Louisiana law, successions are divided into either “testate” or “intestate” successions. “Testate” is when there a valid last will and testament that can be submitted to the court for probate. When there is a last will and testament, that document will determine who will receive the assets belonging to the decedent. When there is no valid last will and testament, however, the succession is considered to be “intestate.” For an  “instate” succession, there are default rules that determine who will inherit the property of the decedent.

The Family Tree of Inheritance

When a decedent dies without a last will and testament, the next thing to consider is the decedent's family tree. If the decedent had children, the children of the decedent inherit all of the property that the decedent owned. If a child died before the decedent with children of their own (grandchildren of the decedent), the grandchildren step into the place of their parent and receive that parent’s share of the decedent’s estate.

If a child of the decedent dies after the decedent’s death, but before the succession is open, the deceased child’s estate inherits that child’s portion of the decedent estate. The general rule is that inheritance rights are determined on the date of death of the decedent, and even though someone might die after the decedent, it does not affect their right to inheritance. In many situations, this means that multiple generations of successions are necessary, for a parent and possibly a deceased child, in order to fully probate assets moving through the estate.

Community Property and Usufruct

When there are children who will inherit the property of the decedent, the next factor to consider is whether or not the decedent was married at the time of his or her death. If they were married, and the decedent co-owned property with the spouse “community property,” although the children will inherit the decedent’s one-half ownership of the community property, the surviving spouse will be granted a right to use all of the community property during his or her lifetime or until he or she remarries. This right to use the community property is known as a “usufruct.”

In this situation, although the kids may have titled ownership of one- half of the community property, the usufruct in favor of the surviving spouse prevents the children from using the property, selling the property, or doing anything to interfere with the surviving spouse’s use of the community property. In a situation where there is a home that is community property, this means the surviving spouse can use the home or rent the home to third parties without interference from the children. If there is cash assets in an account that is community property, the surviving spouse is able to spend and use that cash without interference from the children.

What If There Are No Children?

When the decedent dies, leaving no children, the classification of the decedent’s assets becomes important. If the decedent was married at the time of his or her death, the decedent assets must be classified as community property, those co-owned with the surviving spouse, and separate property, assets owned before marriage or that were inherited by the decedent. When the decedent died owning community property and having no children, the surviving spouse of the decedent will inherit the community property. Any separate property will be inherited by the decedent’s family.

There is a specific order that the decedent's family will inherit. The family members inherit starting with brothers and sisters, then parents, then aunts and uncles, and then cousins. The first group of people that are present inherits all of the decedent’s property. For example, if the decedent had one brother, that brother inherits all of the decedent’s property and nothing goes to any of the other groups of people.

If there are siblings and there is also a surviving parent, the surviving parent is granted a right of usufruct over the property of the decedent. This usufruct works the same way as the spousal usufruct described above and lasts until the parent passes away. 

Contact Us Today

As you can see, the question as to who inherits when someone dies is not always an easy question to answer. It is best to consult an experienced succession attorney to review and analyze the many factors that determine inheritance rights. This is just an overview on the main factors and there are many other factors and issues that can arise that affect who will inherit when someone passes away.

Scott | Vicknair Law, Estate & Probate Division helps hundreds of families in New Orleans, Covington, 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 learn how we can help with your succession.