What is a succession? A succession, is simply the process of transferring assets from someone who passed away to their legal heirs. In some other states, this may happen automatically upon the person passing, however in Louisiana a legal proceeding must be conducted to document the transfer. There are however different ways of handling this legal process. Below we discuss the options and when to use them.
The Different Procedures For Opening Succession
There are basically two different procedures for handling a succession in Louisiana. The first is “simple possession” and the second is “administration.” The selection of which procedure to use depends on what issues need to be resolved in the estate and most importantly, whether the heirs of the estate are cooperative. As a rule of thumb, the more cooperation there is between the heirs, the quicker the succession can be completed and the lower the court costs and attorneys fees will be for handling the matter.
Simple Possession Of An Estate
Where there is full cooperation between the heirs, a simple possession succession is typically recommended. Under a simple possession succession, the heirs are simply put into possession of the assets belonging to the decedent. Pleadings are drafted and filed with the court that state that the decedent passed away, list the assets of the decedent, and name the heirs who will inherit the assets. The end result is a Judgment of Possession issued by the court declaring the heirs to be the legal owners of the assets of the estate. That Judgment of Possession can then be provided to banks to close bank accounts, brought to the DMV to transfer title to vehicles, and also recorded in the land records to transfer ownership of any real estate owned by the decedent.
If any assets need to be sold, the heirs can sell them after the succession in finished as co-owners of the asset. Likewise, any obligation or liabilities of the estate can be paid by the heirs out of the common assets received from the succession after the succession is complete. Handling these issues after the succession is closed greatly lowers the costs for handling the succession. As such, it is the preferable procedure to use when there is cooperation between the heirs.
Placing An Estate Under Administration
When there is no cooperation between the heirs or if there are legal disputes, placing the succession under administration is typically recommended. When a succession is placed under administration, a person, usually one of the family members, is appointed as a the representative of the estate. That person known as either an "administrator" or "executor” is responsible for handling the assets of the estate.
To be appointment, the person must file pleading with the court seeking appointment. If more than one person wants to become the representative, the court will decide who is best qualified and also taking into account their relation to the decedent. Unless it is waived by the heirs or in last will and testament, the person designated as the succession representative typically has to post a bond to serve as succession representative. The bond provides a source of recovery in the event the succession representative mishandles the estate causing damage to the heirs.
If the last will and testament provides for it or the heirs agree to it, the succession representative can be appointed as an “independent administrator" of the estate. When a succession representative is appointed on an “independent” basis, he or she is not required to obtain court authority and approval before taking actions as administrator.
For example, if the succession administrator wants to sell real estate belonging to the estate, normally pleadings would have to be filed with the court to seek approval of the sale. The succession administrator would also have to publish notice of the request in the newspaper and wait time delays to expire before approval can be obtained from the court. These extra steps are time consuming and increase the cost of the administration of the estate. However, if the succession administrator is appointed as an “independent administrator,” these additional steps are not necessary and the administrator can move directly forward without court approval.
Although independent administration saves time and money in the administration of the estate, it does however eliminate checks and balances system and court oversight that regular administration provides. In situations where the heirs do not fully trust the succession administrator, maintaining this oversight and not electing independent administration is typically recommended.
How Our Succession & Probate Attorneys Can Help Select the Best Procedure
Whether simple possession or administration is being used, the main goal of any succession is to transfer ownership of the estate to the heirs and close the estate. Sometimes this means liquidating all of the assets in the estate and making a cash distribution to the heirs. Other times, assets are simply retitled in the name of the heirs and they become co-owners of those assets upon the closure of the estate and completion of the succession. Every estate is a unique combination of assets and the people and personalities involved. It is the combination of these factors that determine the best procedure to use to handle the estate.
The advice of an experienced succession attorney is needed to review the facts of a particular case to determine the best procedure to use to handle an estate. The succession and probate attorneys at Scott | Vicknair Law helps hundreds of families every year with succession issues. We can guide you through the process to get you started in the right direction and save time and money. Let our experience work for you to make the probate process as easy and cost-effective as possible. Contact us in our New Orleans or Covington office to get started today.