last update 1-01-2003

Louisiana Estate Administration


The estate of a deceased person includes the property, rights, and obligations that a person leaves after his death, whether the property exceeds the charges or the charges exceed the property, or whether he has only left charges without any property. The estate includes not only the rights and obligations of the deceased as they exist at the time of death, but all that has accrued thereto since death, and the new charges to which it becomes subject. Louisiana law permits reference to the term "estate" of the deceased as defined but grants no separate legal existence to such an entity.

The more common term in Louisiana parlance is that of succession. Succession is the transmission of the estate of the deceased to his successors. The successors thus have the right to take possession of the estate of the deceased after complying with applicable law. The word succession means the process by which heirs and legatees succeed to the property of the deceased. Since the property is transmitted immediately upon the death to the proper successors, it follows that they have a right to possession after complying with appropriate procedural requirements. Just like the term estate, a succession is not a separate legal entity.

Source: La Civil Code Art 871-872

Probate Procedure

Probate is the term normally used to describe certain procedures when there is a will. The term is derived from the Latin word meaning proof and is thus used at the time that the will is to be proven or probated. The will is located, processed and probated, or put into effect. Many people refer to the process of judicial determination of the distribution of a deceased estate as a probate process. However, since the proper use of the term probate refers to those situations in which a will exists, it would be an incorrect term unless a will was involved. Notwithstanding that fact, the term probate is generally used to refer to the legal proceeding whereby the decedent's property is distributed to his descendants.

Regardless of whether the decedent left a will or not, the proper court for opening a succession is the state district court in the parish where the deceased was domiciled at the time of his death. If he was not domiciled in Louisiana at the time of his death, then the succession could be opened in the parish in which he owned immovable property or, if none, then in the parish where he owned movable property. If he were living in a nursing home that was in a different parish than his real home or domicile, the parish of the real home or domicile would be the proper parish.

The first step in the succession procedure is to present to the proper court an affidavit verifying the death and stating the proper domicile of the decedent. Any existing will should also be presented to the court with a request that the will be filed in the record and that the last will be probated. Proof of the validity of any witnesses' signatures and the signature of the notary to the will must be presented with either live testimony or by affidavit.

If a party objects to the probate of a will, he has a right to file a petition objecting to it. The opposition to the probate will require a hearing in open court and the proponent of the will bears the burden of proving the authenticity of the testaments and its compliance with all of the formal requirements of law.

An administration of a succession is normally required only when there are sizable properties involved or when there are disputes among the heirs. The purpose of an administration is to continue the efficient operation of the decedent's estate until the matter can be resolved.

The heirs of an intestate succession (without a will) can be recognized by the court and sent into possession of the decedent's property without an administration when all of the heirs are competent and they accept the succession unconditionally, and the succession is relatively free of debt. A succession is considered to be relatively free of debt when its' only debts are succession charges, mortgages not in arrears and debts which are small in comparison with the assets of the succession.

For a testate succession (with a will), the court may send the heirs and legatees into possession of the decedent's property without an administration of the succession when all of the legatees are either competent or are acting through their legal representatives, all competent legatees accept the succession unconditionally and none of the creditors of the succession has demanded an administration.

Source: La Code of Civil Procedure Art 2851 et seq


Succession Representative

The succession representative is the person that is placed in charge of the estate when there is an administration. This representative may have the title of executor if he was so named in a will or administrator if he was not named in a will but appointed by the court.

Unless the person named in the testament as executor is disqualified on any of the grounds set forth below, the court will order him confirmed as testamentary executor and direct the issuance of letters testamentary confirming that fact. Letters testamentary is just a term to describe the order appointing the executor. In order to qualify, the person must be:

  • Age 18 or older
  • Not interdicted or mentally incompetent
  • Not a convicted felon
  • A non-resident who has appointed an agent
  • A corporation authorized to perform this duty
  • A person who is fit due to good moral character

    When no qualified person has petitioned for appointment as administrator of a succession within three months of the death of the deceased, the court may appoint an attorney at law as administrator and set his compensation. The attorney would be required to post security. Otherwise, all of the provisions relating to the administrator of a succession would apply to the attorney.

    The security required by an administrator is set by law to be 1 times the value of the property of the estate. This means that the administrator must produce a bond, secured by his own real estate or by an insurance company, that guarantees his performance. A person who was named by the testator as executor is generally not required to furnish security. However, the will can require security and forced heirs, a surviving spouse in community or creditors can require that the executor post security.

    The listing or inventory of a decedent's property is created by a notary appointed by the court in the presence of at least two competent witnesses, assisted by two competent appraisers appointed and sworn by the notary. Upon completion, a record of the inventory is to be made and filed with the court. This can be a cumbersome process.

    In lieu of the above formal inventory process, what is normally done in successions, and is allowed by law, is the filing of a sworn detailed descriptive list of property. This list would list all of the property of the deceased including the legal description of immovables, the account numbers of bank accounts, stock certificate numbers for stock, vehicle identification numbers for vehicles, etc. The list is normally prepared by the attorney, adopted and sworn to by two witnesses who are familiar with the property.

    The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties, has mismanaged the estate, has failed to perform any duty that he should have performed, or has ceased to be a domiciliary of Louisiana without appointing an agent. However, the removal of a succession representative from his office does not invalidate any actions that he had taken prior to his removal.

    Source La Code of Civil Procedure Art 3081 et seq


    Powers of Succession Representative

    The succession representative is a fiduciary to the succession and has the duty of collecting, preserving and managing the property of the succession. He is to act at all times as a prudent administrator and is personally responsible for all damages resulting from his failure to act. He has the duty to close the succession as soon as is advisable.

    A succession representative cannot, in his own personal capacity or as representative of any other person, make any contracts with the succession of which he is the representative. He cannot acquire any property of the succession or interest therein, personally or by means of third persons. All contracts so prohibited are voidable and the succession representative will be liable to the succession for all damages resulting from his dealings.

    The above limitation of not contracting with the succession is not applicable to a succession representative who is a surviving spouse of the deceased, a partner of the deceased with respect to the assets and business of the partnership, a co-owner with the deceased as it relates to the co-owned property, an heir or legatee of the deceased or a creditor with respect to the property secured by a mortgage or privilege.

    The succession representative has all of the procedural rights of any other party who is a litigant. As such, he can sue and be sued in his capacity as succession representative.

    The representative is deemed to have possession of all of the property of the succession just as did the decedent. As such, he has the right to enforce all obligations of the succession in its favor.

    When the succession representative receives money, he is to deposit the funds in a proper bank account without unnecessary delay. He is to only withdraw and disburse the funds as will be discussed later. His failure to promptly deposit the funds of the succession could be a cause to have him removed from office and to assess a charge against him, personally, and his surety, of an amount of 20% per annum with such funds being paid to the succession.

    If there are idle funds in the succession, the representative may invest those funds but only after obtaining the approval of the court. He is also authorized to continue the operations of a going business but only after court approval.

    Source La Code of Civil Procedure Art 3191 et seq


    Claims Against the Succession

    When a party has a claim against the decedent or against the succession, he should present that claim to the succession representative. If the representative does not acknowledge the debt within 30 days, it is considered to be denied. In that case, the creditor would be advised to make a formal submission of the claim in the proper format to stop the running of prescription (statute of limitations) so that he does not lose his claim due to the lapse of time.

    In order for a creditor to sue a succession representative for a debt, the debt must first be presented to the representative and rejected by him, either directly or by not acting on the matter for 30 days.

    If a creditor is successful and obtains a judgment against the succession representative, he cannot use that judgment to seize any property of the succession. However, if there were a regular mortgage on property of the deceased, that mortgage could be a basis for seizing the mortgaged succession property.

    The succession representative may sell succession property but only after following certain rules and obtaining court approval. The approval process begins with the filing of a petition in the succession record providing all of the pertinent facts about the proposed sale. A notice of the filing of the application to sell property is to be published in the proper newspaper of the parish one time when movable property is involved and at least 2 times (3 weeks apart) when immovable property is involved. The notice must state that court approval can be obtained within 7 days of the last date on which the notice is published unless there is an objection filed in the record. An opposition to a private sale may only be filed by an heir, legatee or creditor.

    The private sales of bonds or stock at prevailing market rates also require court approval but there is not a requirement for advertising. Court approval can be obtained simultaneously with the filing of the petition requesting such approval.

    The succession representative may pay the bills and debts of the succession but only after filing a petition to do so, publishing a notice of that fact and obtaining court approval in a timely fashion. The payment of urgent debts or expenses of operating a going business could be exceptions to this rule.

    Interested parties can file a notice in the succession proceedings to be notified of the filing of any petition to pay bills and expenses. An opposition to the payment of bills and expenses may be filed after the notice is mailed or published. However, since approval and payment can be made seven days after such mailing or publication, the objection must be timely filed. If objection is filed, then the court will set the matter for a hearing and both sides can present their positions.


    Annual Accountings

    The succession representative is to file an annual accounting with the court. The accounting is to show the money and other property received by and in the possession of the representative at the beginning of the period, all receipts of funds or property and expenditures of funds during the year and the property on hand at the end of the year. Failure to file an annual report could be grounds for removal of the representative.

    Copies of the annual accounting are to be provided to the heirs and legatees along with a notice that the accounting can be approved by the court within ten days thereof. If no opposition is filed, the court can approve it thereafter and that approval is prima facie proof that it is correct.


    Executor's Fee

    The fee or compensation to be paid for an executor named in the will is the amount that is specified in the will. The fee for an administrator is the agreed upon fee at the date of his appointment. In the absence of a provision in the will or an agreement, the succession representative's fee is 2 % of the amount of the inventory in the succession. This is not an amount payable annually but rather is a flat fee. If circumstances require a different fee, it can be modified by the court. If there are multiple representatives, they are to share in the fee and should not each expect to collect the maximum amount. If the person who is the succession representative is also the attorney for the succession, he cannot claim fees in both capacities but only a reasonable fee for the work that he does. Any such compensation still requires court approval prior to payment.


    Final Judgment of Possession

    A succession is concluded at the time the judge executes a final judgment of possession. This judgment transfers the property of the decedent to the heirs and legatees and will not be signed until all of the affairs of the succession have been wrapped up, expenses and charges of the succession have been paid, inheritance taxes paid, and there is nothing further for the succession representative to do. Under special condition, distributions can be approved by the court at earlier times.

    The judgment of possession will list the various heirs and legatees who are receiving property and list, in detail, the property that they are to receive. When the judgment of possession is recorded in the conveyance records in the clerk of court's office, the listed property is thereby officially recorded in the name of the heirs and legatees.

    Since the succession representative is still in charge of the property up to the disposition of it in the judgment of possession, he must then file his final accounting showing the activity during the last year or part of the year since the last annual accounting. The representative can petition for approval by the court of his discharge and if there is no opposition, he will be discharged.

    Sometimes property of the decedent is found after a succession has been concluded. In those cases, the succession can be reopened to deal with that property. After the state inheritance taxes have been paid, if applicable, the judge will sign an amended or supplemental judgment transferring the newly found property to the proper heirs or legatees.

    Source La Code of Civil Procedure Art 3241 et seq


    Ancillary Probate Procedure

    The property laws of the various states control the ownership of immovable property located within their boundaries and the disposition of that property upon the death of the owner. Thus, if a decedent is a domiciliary of one state but owns property in another state, a probate proceeding will need to be instituted in that second state to deal with the transfer of the property in that second state. That proceeding is not the primary probate proceeding but is a minor or ancillary filing to handle only a specific property. As such, the filing in such second state is referred to as an ancillary probate proceeding.

    For matters involving property located within the state of Louisiana, the petition for an ancillary probate proceeding should be filed in the parish where the immovable property is located. Upon opening the succession, a succession representative appointed by a court outside of Louisiana may act with respect to property located in Louisiana but only after qualifying in this state.

    If the decedent died with a will and that will was executed outside of Louisiana in the manner prescribed by the law of the place of its execution, that will has the full force and effect of law in Louisiana just as if it had been executed according to Louisiana law.

    Source La Code of Civil Procedure Art 3401 et seq


    
    ========================  WARNING  =======================
                          AND DISCLAIMER
    This information is provided for the reader's benefit in
    becoming familiar with the legal matters discussed.  Your
    particular facts may be different from the points above.
    You should not rely on the above data without consulting a 
    attorney to discuss the specific facts of your case
    and the law of your state.
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    If you live in Louisiana and want to talk about your situation, please call me at:

      Marvin E. Owen
      Attorney-CPA
      3036 Brakley Drive
      Baton Rouge, La 70816
      ph 225-292-0099
      toll-free 1-888-292-0116
      e-mail marvin@meocpa.com

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