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Succession Administration in Louisiana
Since we have handled many succession administration cases at Ladouceur Law Firm, we have encountered a wide array of questions asked by our clients. We have taken the initiative to compile these concerns and share general information about them. please note that the following answers on succession administration in Louisiana, are only meant to be taken as general information, do not apply to all situations or your specific circumstances, and do not constitute legal advice.
What Happens if One Dies Without a Written Will?
Property acquired during your marriage is considered conjugal property. Your spouse owns one-half of it. Ownership of your half of the property passes to your children, subject to your spouse’s right to use the property until his or her death or remarriage, whichever comes first. Your separate property passes to your children and is not subject to any usufruct (the right to use) in favor of your spouse. The law provides different rules in situations where you have no children or a spouse.
Who Is in Charge of Succession Administration?
If you do not have a written will, any heir, spouse, or creditor can apply to be appointed as your Administrator. The Administrator must take an oath and post a bond equal to 125% of the value of your assets. The cost of a bond could be expensive. If you have a written will, the person you name in that document will be appointed Executor, and you can waive their bond. In Louisiana, if these persons are females, they are referred to as the Administratrix or Executrix.
What Does an Executor/Administrator Do?
He or she is in charge of preparing a list of all of your assets, selling assets needed to pay debts and expenses for your estate, and distributing the remainder to your heirs and legatees. The law sets the Executor’s fee at 2 and 1/2% of the gross estate, unless you state otherwise in your written will.
Is It Better To Have a Written Will?
Yes. Without a written will, your surviving spouse cannot sell real estate and certain investments without obtaining your children’s permission. With a written will, you can grant the surviving spouse the right to sell your half of the assets with the understanding that your spouse will owe your share of the proceeds from the sale to your children at the end of the usufruct.
With a written will, you can confirm the surviving spouse’s usufruct for life, which is important if you have an estate in excess of the federal estate tax exclusion. You can also name an Executor of your choosing, set his or her fee, dispense with the need for a bond, and provide for the administration of your estate without court supervision.
Additionally, you can name guardians for your children (called tutors in Louisiana) and, of course, make particular bequests to those who would not get your property if you died without a written will.
How Does One Start the Succession Process?
If there is a written will, the Executor asks the Court to probate the will and issue Letters of Testamentary to the Executor, which shows the world that the Executor is in control of the succession administration. Without a written will, the Administrator must first compile a preliminary list of the decedent’s assets and post a bond before the Court issues Letters of Administration to the Administrator.
In both cases, an Affidavit of Death and Heirship setting forth the decedent’s next of kin and a copy of the death certificate must be filed with the court.
What Happens Next?
The Executor will open a bank account in the name of the succession and obtain an ID number from the IRS for the succession. Afterward, he or she will collect all money in the decedent’s name and place it into the succession account. The Executor will then pay bills as they come due and determine whether assets need to be sold in order to pay other debts.
After all debts and expenses have been provided for, the Executor will petition for authority to distribute the remainder to the heirs at law or legatees under the written will.
Is Court Approval Required To Sell Assets and Pay Debts?
The Executor may not sell assets or pay debts or expenses without first obtaining court approval. In most cases, the Executor must ask the Court for permission, publish a Notice in the paper of the proposed sale or payment of funds, and give interested parties an opportunity to object. If no objection is made, the Court will approve the sale or payment of funds.
Notice of the proposed sale or payment is not automatically given to the heirs or legatees. You must specifically ask the Executor to receive a copy of the Notice by filing a request in the succession proceeding. Obtaining court approval can sometimes be time-consuming and costly.
Can the Succession Be Administered Without Court Supervision?
Yes. You may provide that your Executor may act independently in your written will. If you have no written will, your spouse and your children can ask the Court that the Administrator act independently. In such a case, your assets may be sold, and your debts may be paid without first obtaining permission from the Court, thereby saving time and money.
At the end of the succession process, the Executor will still have to provide all heirs with an accounting of the assets on hand at your death plus all money collected, less all payments made, unless the heirs waive the formality of such an accounting.
Who Is Responsible for the Decedent’s Debts?
Just because someone dies does not mean their debts will go away. Whoever gets the decedent’s property takes it subject to the debts that go along with the property, up to the value of the property. The allocation of debts depends on the terms of the written will and the nature of the debt.
For example, if you leave your house to your children, they will take the house subject to the mortgage on the house. On the other hand, if you leave your house to your sister and direct that all of your debts will be paid from the balance of the estate going to your kids, the Executor will pay off the mortgage on the house and deliver the house free and clear to your sister.
How Much Does the Succession Process Cost?
Obtaining a Judgment of Possession without an administration in a simple estate typically costs $1,500 plus $400 in court costs. The cost of administering an estate will depend upon the nature of the decedent’s assets, the amount of debts, whether property must be sold, whether objections will be made by the heirs, whether court supervision is required, and whether an accounting is necessary.
What Is the First Step of the Succession Process?
Contact our office and ask for a Succession Checklist. This checklist will provide you with a list of documents and information that must be gathered in order to open a succession proceeding in Louisiana. To obtain the checklist or for further information regarding the succession process, call us at 985-898-2131.
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For additional details about succession, feel free to reach out to us today. We would be more than happy to address your questions and accommodate your legal needs.