If a deceased person’s estate cannot be transferred using one of the alternatives to Louisiana successions, it will be necessary to open a judicial succession in Louisiana. Fortunately, Louisiana’s succession process is not as complicated as the probate process in some other states.
Most successions in Louisiana fall into one of two categories: Succession Without Administration and Succession With Full Administration. There can be some variation within each category, depending on whether the decedent had a will and whether independent administration is available.
Succession Without Administration (Simple Putting in Possession)
The most common form of Louisiana succession is a Succession Without Administration (sometimes referred to as a “Simple Putting in Possession”). In this type of succession, no succession representative (also called a personal representative or executor) is appointed and no administration is necessary. After the estate is filed with the court, the succession attorney obtains a Judgment of Possession transferring title to the decedent’s assets.
When Succession Without Administration is Available: Testate Estates
If the decedent had a valid Last Will and Testament, the estate will be referred to as a testate estate. Formal administration is not required for testate estates if all of the following conditions are satisfied:
- All people named in the will (this group of people are called legatees) are either competent or acting through their qualified legal representatives;
- All competent general and universal legatees (those who inherit after all specific gifts have been paid out) accept the succession unconditionally; and
- None of the creditors of the succession has demanded an administration.
If the estate qualifies for Succession Without Administration, the Louisiana succession attorney will prepare the pleadings to open estate. These pleadings will typically include an Affidavit of Death, Jurisdiction, and Heirship, a Sworn Detailed Descriptive List, and a Petition for Probate of Testament (whether olographic or statutory), Petition for Possession, along with the other documents necessary to put the legatees in possession of the decedent’s assets. The succession attorney can then attend a hearing and obtain a Judgment of Possession.
In a testate Succession Without Administration, no executor (succession representative) is appointed. Because of this, there is no need for a succession representative to join in the petition as such. But if the will named someone to serve as succession representative, he or she is required to join in the petition before the court will issue an ex parte judgment.
In a Succession Without Administration, at least one of the petitioners must sign a verification. As a practical matter, the Louisiana succession attorney will typically ask all of the residuary legatees to sign the verification. This demonstrates to the court that everyone is in agreement and protects the succession representative named in the will.
When Succession Without Administration is Available: Intestate Estates
If the decedent died without a Last Will and Testament, he or she is said to have died intestate and the estate assets will be distributed as provided by Louisiana intestate law. In that case, full administration of the estate will not be required the succession is “relatively free of debt” and all required parties request that the succession be without administration.
A succession is “relatively free of debt” if the only debts are the expenses of administration, mortgages that are paid current, and “the debts of the decedent are small in comparison with the assets of the succession.”
In a Succession Without Administration, the following parties are required to sign the petition:
- All of the heirs who are mentally competent, if they accept unconditionally; OR
- The legal representative of the incompetent heirs, if all of the heirs are incompetent; OR
- The surviving spouse in community with the decedent, if all the heirs are incompetent and no legal representative has been appointed for some or all of the heirs. In this scenario, the court may recognize the surviving spouse in community as entitled to possession of all community property.
Note: New Orleans Successions
If a Succession Without Administration includes real estate in New Orleans, Louisiana (or elsewhere in Orleans Parish), the Louisiana succession attorney must file a copy of the Judgment of Possession with the assessor for Orleans Parish within 15 days from the date that the judgment becomes final.
Succession with Full Administration
If the estate does not qualify for a Succession Without Administration, a Succession With Full Administration will be required. This is usually required in the following circumstances:
- There is a question regarding the validity of the decedent’s Last Will and Testament;
- The identity of the decedent’s heirs are unclear or cannot be located or it is unclear which of them are entitled to the decedent’s property;
- There is a question regarding the solvency of the estate;
- Assets need to be sold from within the succession proceeding to pay creditors;
- A forced heir claims that he or she has not received the assets to which he is entitled by law; or
- Other disputes arise regarding the succession.
In a Succession with Full Administration, a succession representative is appointed by the court to represent the succession and resolve all outstanding issues. The succession representative is also responsible for fully administering the estate (see our section on Louisiana Estate Administration).
Once all issues are resolved and the estate is administered, the succession representative will propose a distribution to the court by filing a document known as a Tableau of Distribution. If everyone agrees with the Tableau of Distribution, the judge will approve it through a process called homologation and order the assets to be distributed accordingly.
Successions with Full Administration are the most complex form of succession under Louisiana law. As a result, attorneys fees and administration costs are usually higher in a Succession with Full Administration.
