Dying Without A Will - Intestate Successions

Authored By: Lagniappe Law Lab

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About Dying Without A Will - Intestate Successions

When a person dies without a will they die, intestate. Intestate law determines how a person's assets and property get distributed. Since the person does not have a will, intestate law in Louisiana passes property to their heirs. The order of division depends on if the person has a surviving spouse and the type of marriage. It also depends on whether the person has children or other relatives that property may pass to. The law distributes assets depending on the degree of relationship to the decedent.

The following assets do not get distributed by intestacy. The assets pass to a surviving co-owner or beneficiary.

  • Property the decedent transferred to a living trust.

  • The decedent's life insurance proceeds.

  • Funds from an IRA, 401(k) or other retirement accounts.

  • Funds from payable-upon death bank accounts.

  • Property the deceased owned with another person through joint tenancy (holding of property by two or more owners). 

Types of Property in Marriage to Another Person

Types of Property in Marriage to Another Person

Property is Separate Property or Community Property when you get married to another person. Classify the type of property for the succession.

Community Property

  • Community property is all property earned or acquired during a marriage. This includes property that is earned or acquired by an individual spouse. There is a presumption that all property acquired or earned during the marriage. Under Louisiana law, the property is the marriage is community property. 

  • Community property laws apply to all spouses living in Louisiana

    • Spouses did not have to live in Louisiana during their marriage

    • Spouses do not have to have a marriage take place in the state of Louisiana

Separate Property

Links to the Law

 

Heirs and the Right to Inherit

Heirs have three options when the decedent dies

  1. Accept the succession unconditionally
  2. Accept with benefit of inventory; or
  3. Renounce the successions

Acceptance may be formal or informal.

  • Formal acceptance is where the successor expreslly accepts in writing or assumes the quality of successor in a judicial proceeding. 
  • Informal acceptance is where the successor does some act that clearly implies his intent to accept. e.g. living in the home of a parent

Understanding the right to inherit as an heir

A successor must have capacity. To have capacity the successor may come into existence in three ways:

The successor must not go out of existence before the death of the decedent.

 

Unworthiness is an involuntary termination of inheritable rights to a successor. The court declares unworthiness in instances where there is a: 

  1. Conviction for intentional kill or crime involving killing of the decedent.
  2. Judicial determination the successor participated in the intentional, unjustified killing. or attempted killing of the decedent. 

An action to declare that a successor is unworthy can get filed only by the person who is the other successor. An action can also get filed by a person who has claims of a successor i.e. representing a minor. The other successor may succeed in the place of the unworthy successor. The other successor may have also succeeded with the court-declared unworthy successor. An executive pardon or pardon by law does not affect the unworthiness of the successor.

 

Last Review and Update: Jun 29, 2022
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