This section walks you through the basic steps required to open a succession in Louisiana. The process can differ depending on whether the decedent had a valid Last Will and Testament. If so, the will must be “proved.” This is done by admitting the will to probate in Louisiana. There is no need to probate a Will if the decedent died intestate, but the court process is otherwise similar.
Choose the Right Place to Bring the Louisiana Succession
Courts can only hear successions if they have jurisdiction. Because of this, it is important that the succession be opened in the right parish, determined as follows:
- If the decedent was domiciled in Louisiana at the time of death, the succession should be opened in the parish where the decedent was domiciled;
- If the decedent was not domiciled in Louisiana at the time of death, the succession must be opened in the parish where the decedent owned real estate (immovable property);
- If the decedent was not domiciled in Louisiana at the time of death and didn’t own any real estate in Louisiana, the succession should be opened in the parish where the decedent’s other assets are located.
If the decedent doesn’t fit within any of these categories, it’s probably because there’s no need to open a Louisiana succession.
To determine where a deceased person is domiciled, courts look for a place where the decedent had a principal (habitual) residence – the place where the decedent lived when he or she was “at home.”
Louisiana law assumes that a person has not changed domicile unless there is evidence to the contrary. This evidence must show, beyond a reasonable doubt, that the decedent actually changed his or her residence and intended to permanently live in the new residence.
Affidavit of Death, Domicile, and Heirship
As a practical matter, issues concerning the decedent’s domicile are presented to the court as part of the Affidavit of Death, Domicile, and Heirship. This document is one of the first documents that the Louisiana succession attorney files with the court.
As the name suggests, the Affidavit of Death, Domicile, and Heirship also establishes the decedent’s death and identifies his or her heirs. Death, marriage, and birth certificates can also be used to establish death and heirship.
The Affidavit of Death, Domicile, and Heirship must be signed by two people that know about the facts contained in the Affidavit. The Affidavit does not need to be witnessed.
Petition for Probate of Testament
A Petition for Probate of Testament is a document that is prepared by the succession attorney, signed by the personal representative, and filed with the court. The purpose of the document is to ask (petition) the court to recognize the validity of the decedent’s will. The Affidavit of Death, Domicile, and Heirship is usually presented with the Petition.
If the Last Will and Testament is a notarial testament, it is considered to be self-proved. This means that no additional testimony is required to establish its validity before the court. Once the will is presented to the court, Louisiana law provides that the court “shall order it filed and executed and this order shall have the effect of probate.”
If the Last Will and Testament is in any other form, it is not considered to be self-proved. This requires additional evidence to demonstrate its validity to the court.
If there is no dispute regarding the validity of an olographic testament (handwritten will), it can be provided by affidavits from two witnesses. These affidavits will state that the will meets the requirements of an olographic testament (in the testator’s handwriting, signed, dated). The affidavits must be signed after the death of the testator.
If there is a dispute regarding the validity of an olographic testament, the testament will be probated only after a contradictory trial. Because of this, probate of contested estates are usually much more expensive than probate of uncontested estates.
See our discussion of Louisiana Last Will and Testaments for more information about the forms of wills that are recognized by Louisiana law.
