Your Guide To A Louisiana General Property Succession
About General Successions
General Property Successions (i.e. for estates $125,000 or greater)
- A succession is the legal process to transfer property after a person's death. The succession of an estate and decedent's rights occurs immediately upon death.
- A general property succession occurs when the calculated estate value is $125,000 or more. A general property succession happens when there is no will (i.e. intestate succession).
- An heir must exercise their ownership for an interest in an asset of the estate. They may also exercise ownership for an interest in the estate as a whole.
For an estate with a calculated value of less than $125,000, a simple small succession affidavit is available. Learn more here.
The Complexity Of Successions
The complexity of the succession depends on:
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The decedent's debts.
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Conflict or issues among family members or other heirs.
When you are dealing with a complicated succession, it is in your best interest to find an attorney who can help you.
Documents And Information To Collect For The Petition For Possession
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Decedent's date of death,
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Decedent's domicile at the time of death
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Whether the succession is testate (i.e. with a will) or intestate (i.e. without a will). Attach the original will.
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Allege that all successors accept the succession if not all are signing
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Affidavit is evidence to prove the allegations of the Petition.
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Must get signed by at least two competent affiants who knew the decedent and have knowledge of the facts.
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The Affidavit echoes the facts in the Petition - it must state the date of death and marriage. It must establish jurisdiction and decedent's relationship to the heirs.
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It is good practice to cite the case name, docket number, court name and divorce judgment date of any divorce.
Does not need a death certificate. The affidavit is proof for the court - of jurisdiction, death, and heirship.
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Must include all assets of the decedent at the time of death.
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All assets the decedent owed an interest in at the time of death.
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Does not need to show debts, but sometimes this gets included.
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Values included are the fair market values of the property.
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List must be sworn by heir, legatee or other interested party.
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If married - usually consists of separate property and one-half of the community. The usufruct of the surviving spouse reduces the value of the heirs' naked ownership.
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Divorced decedent’s may also co-own former community property not partitioned.
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List must include:
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Real Estate - put the legal description of the property in the list from previous deeds.
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Money in bank or credit union accounts, stocks, bonds, cash, mortgages, and other things of value. e.g. jewelry, household goods and personal effects, cars, boats, livestock, equipment.
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Interest in partnerships, businesses, cash surrender value of insurance, royalties, rights, claims.
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Can include debts of decedent but not required.
The Judgment of Possession lists the property and assets part of the estate. i.e. includes the legal description of any immovable property
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Lists the property and assets part of the estate. i.e. includes the legal description of any immovable property
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Names each successor; includes a list of the proportion the successor inherits.
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Lists any usufructs that are part of the succession
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Recognizes the successor as owner of property they inherit. Owners of the property can get relied on by 3rd parties to see if ownership rights exist
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Includes last known address of at least one of the heirs, legatees or surviving spouse
- To Include With a Will - Order from Judge that Probates the Last Will and Testament. This can be part of the language drafted in the last judgment of possession.
Links To The Law
- Art. 632. Regulation by title
- Art. 934. Commencement of succession
- Art. 935. Acquisition of ownership; seizin
- Art. 936. Continuation of the possession of decedent
- Art. 937. Transmission of rights of successor
- Art. 938. Exercise of succession rights
- Art. 2811. Court in which succession opened
- Art. 2821. Evidence of jurisdiction, death, and relationship
- Art. 2822. Requirements of affidavit evidence
- Art. 2825. Costs
- Art. 3002. Same; petition for possession
- Art. 3003. Same; evidence of allegations of petition for possession
- Judgments of Possession Art. 3061. Judgment rendered and signed immediately
- Art. 3061. Judgment rendered and signed immediately
- Art. 3062. Effect of judgment of possession
How To File A Succession With A Will
Probating A Regular Succession: With A Will (i.e. for estates $125,000 or greater)
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A will says who gets the property when the decedent dies.
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The will assigns a personal representative called an Executor or Executrix. The executor/executrix transfers the decedent's property through a court-supervised process called probate.
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To begin the probate process, the executor/executrix must first get legal authority to transfer the decedent’s estate. The document that grants the executor/executrix this power is called letters testamentary.
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To confirm the executor/executrix’s legal authority, he/she must Petition for Probate of Testament and Administration of the Executor in the court of the parish that the decedent lived
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The purpose of the Petition for Probate of Testament is to ask (petition) the court to affirm the validity of the will
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The court will then issue the Letters Testamentary which will allow the executor/executrix to collect the decedent’s assets and then carry out other obligations, like paying debts and transferring property to beneficiaries as stated in the terms of the will.
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If no executors are named in the will, or none of the named executors are willing or able to act, any beneficiary can apply to act as administrator of the will.
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In this case, any beneficiary would petition the court for Letters of Administration
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Once the court issues the letters, the administrator would then act as an executor/executrix and fulfill his or her duties, like paying debts and transferring property to beneficiaries as stated in the terms of the will.
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If a will does not name an executor or executrix, then the court picks a representative. When there is no will or the will is not valid the court holds a hearing to appoint the individual, who applied, to be the administrator
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The administrator can sell, lease, mortgage, transfer, and otherwise deal with immovable property. They act as if they are the decedent and how the decedent would divide the property.
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A will should state in clear express terms who gets the property when a decedent dies. It tells the personal representative how they can distribute property.
- Whenever an heir passes away or there is a new possession it is best if the will gets updated. Check if there are any new heirs or if any heirs have passed.
To open the succession draft all the types of documents part of the succession. File the following documents:
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Petition for Possession
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Affidavit of Death, Domicile and Heirship
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Sworn, Descriptive List of Assets and Liabilities
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Renunciations or donations (if applicable)
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Only need one person needs to sign the Petition for Possession
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Another person also signs the Affidavit of Death, Domicile, and Heirship
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If not all heirs are signing the petition, then you must get written consent that they accept.
- Do NOT sign the Judgment of Possession. A judge will sign off on the petition by signing the order at the end.
A representative collects all the assets of the estate. They also determine what debts are part of the succession and see that the debts get paid. With this information they can prepare to file a succession with the documents in court.
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A representative goes to the parish civil district court where the decedent died. The representative brings all paperwork collected to administer the estate in court.
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They open the succession in court and begin the process to divide the estate.
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A representative might administrate and ask for court proceedings to resolve any questions. Any claims for debts may also get resolved at the time.
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Neither the client or attorney need to appear before a judge to present all the documents
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Sometimes a judge can sign the succession of paperwork on the same day the paperwork gets filed.
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Wait for a Judgment of Possession. A judge signs the Judgment of Possession. All decedent's heirs or legatees get entitled to get placed in possession of the property.
- A Judgment of Possession might still place heirs in possession if there are any liens. This includes tax liens such as on real estate. The heirs take the estate subject to the liens.
Links To The Law
- Art. 2851. Petition for probate
- Art. 2852. Documents submitted with petition for probate
- Art. 2893. Period within which will must be probated
- Art. 2853. Purported testament must be filed, though possessor doubts validity
- Art. 2854. Search for testament
- Art. 2882. Proceedings at probate hearing
- Art. 3001. Sending into possession without administration when all heirs are competent and accept
- Art. 3004. Discretionary power to send heirs and surviving spouse into possession
- Art. 3005. Same; petition for possession; evidence
- Art. 3006. Same; when one of competent heirs cannot join in petition for possession
- Art. 3007. Creditor may demand security when heirs sent into possession
- Art. 3031. Sending legatees into possession without administration
- Art. 3032. Same; petition for possession; evidence
- Art. 3033. Same; compensation of executor
- Art. 3034. Creditor may demand security when legatees sent into possession; administration in default of security
- Art. 3181. Revocation of appointment or confirmation; extension of time to qualify
- Art. 3081. Petition for confirmation - Executors
- Art. 3192. Duties and powers of multiple representatives
- Art. 3194. Contracts between succession representative and succession prohibited; penalties for failure to comply
- Art. 3195. Contracts between succession representative and succession; exceptions
- Art. 3432.1. Affidavit for small succession for a person who died testate; contents
How To File A Succession Without A Will
Probating A Regular Succession: Without A Will (i.e. for estates $125,000 or greater)
Since the decedent died intestate, i.e. without a will, find out who the personal representative is to file the succession in court.
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The representative can be the surviving spouse and/or other heir(s)
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The representative is responsible for collecting all assets of the decedent.
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The representative identifies and determines all debts owed by the succession to see that they get paid
The representative resolves any questions to initiate court proceedings for the administration of the estate.
A petition for possession gives possession to:
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All competent heirs who accept the succession
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The surviving spouse in the community with the decedent if all heirs are incompetent and no legal represenative has been appointed for some or all of the heirs.
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The legal representative of the incompetent heirs, if all the heirs are incompetent and a legal representative is appointed
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A surviving spouse who owns community property can use the petition to be recognized as the owner of their undivided ½ of the community and the other one-half to the extent they have in the usufruct
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In the absence of a written annunciation, a successor is presumed to accept succession rights.
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If a competent heir can’t be located, the other heirs can be sent into possession after the appointment of an attorney to represent the absentee
Identify whether any creditors may demand administration. Heirs remain responsible for the debts that are a part of their share of the estate.
To open the succession draft all the types of documents part of the succession. File the following documents:
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Petition for Possession
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Affidavit of Death, Domicile and Heirship
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Renunciations or donations (if applicable)
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Requires the signatures of two heirs to file a court succession
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Petitioner and second person sign the Affidavit of Death, Jurisdiction, and Heirship
- A representative goes to the parish civil district court where the decedent died. Jurisdiction for the succession is in the district court of the parish where the decedent lived at the time of death. If the decedent owned property in more than one parish - the succession might get opened in each district court of the parish where the property is located
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The representative brings all paperwork collected to administer the estate in court. File the following documents: Petition for Possession, Affidavit of Death, Domicile, and Heirship, Sworn Descriptive List of Assets and Liabilities, Renunciations or donations (if applicable), and Judgment of Possession. They open the succession in court and begin the process to divide the estate.
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A representative might administrate and ask for court proceedings to resolve any questions. Any claims for debts may also get resolved at the time. If there are immediate debts, legal proceedings or other financial matters this is taken care of as part of the administration.
- Wait for a Judgment of Possession. A judge signs the Judgment of Possession. All decedent's heirs or legatees get entitled to get placed in possession of the property.
- A Judgment of Possession might still place heirs in possession if there are any liens. This includes tax liens such as on real estate. The heirs take the estate subject to the liens.
Links To The Law
- Art. 2854. Search for testament
- Art. 3091. Petition for notice of application for appointment - Administrators
- Art. 3092. Form of petition for notice of application for appointment
- Art. 3093. Notice in compliance with petition
- Art. 3094. Order on application for appointment
- Art. 3095. Opposition to application for appointment
- Art. 3096. Appointment when no opposition; appointment after trial of opposition
- Art. 3097. Disqualifications
- Art. 3098. Priority of appointment
After You File Your Succession
After the Succession Gets Completed
- A succession administrator closes the succession at the end of administration. They put successors in possession of their property.
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If the succession included immovable property
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Go to the Conveyance Office in the parish where the immovable property is. Bring a certified copy of the Judgment of Possession.
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If the succession included immovable property in different parishes
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Go to the Conveyance Office in each parish where the property is.
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Check to see if the successor should send the judgment to the board of assessors. Most conveyance offices send the paperwork to the Assessor. It is good practice to make sure the assessor has the names and addresses of new owners.
What To Do After Filing Your General Property Succession In Court
After you file the succession paperwork in court and a judgment gets granted you can act. You will need to distribute and transfer assets. You can have general authority over the following subjects:
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Real Property
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Tangible personal property
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Stocks and bonds
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Commodities and options
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Banks and other financial institutions
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Operation of entity or business
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Insurance and annuities
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Estates, trusts, and other beneficial interests
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Claims and litigation
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Personal and family maintenance
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Benefits from governmental programs or civil or military service
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Retirement plans
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Taxes
Other areas of specific authority that might get granted:
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Create, fund, amend, revoke, or end an inter vivos trust
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Make a gift, subject to the limitations of Louisiana law
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Create or change rights of survivorship
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Create or change a beneficiary designation
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Grant another person power to exercise authority over assets of the estate
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Waive the principal's right to be a beneficiary of a joint and survivor annuity (survivor benefit to retirement plan)
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Exercise authority over electronic communication
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Exercise fiduciary powers the principal has authority to delegate - defined & express
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Renounce an interest in property, including a power of appointment.