Succession Law in Louisiana
The law of Succession in the State of Louisiana, that is, the laws pertaining to the transfer of property to your heirs when you pass away, is unlike the laws of many of the other 50 states. It is a collection of laws that applies in default when someone dies without a will, when a will is invalid (in whole or in part), or when a will does not dispose of all of a person’s property at the time of their death. Below, we have delineated a couple of points that we think will aid you in grasping a very broad understanding of these laws and how property is distributed at death in Louisiana.
Before delving into the subject, we would like to reiterate that the information disseminated here, including the following concerning successions and wills, serves only as a very basic overview of Louisiana law. Should you wish to consult with an attorney regarding the particulars of your situation, please contact us at (504) 324-8716 to schedule a free consultation today.
What Is a “Succession?“
Under Louisiana law, succession is the transmission of the estate of the deceased to his successors (this process is called probate in other states). In its most general term, the estate of a deceased means the property, rights, and obligations that a person leaves after his death.
Kinds of Succession
There are two kinds of succession in Louisiana: testate and intestate. In a testate succession, the deceased died with a will. Conversely, an intestate succession is characterized by the deceased dying without a will, with a will that is invalid in whole or in part, or with a will that does not dispose of all of the decedent’s property. Most of the questions we get surround the latter, as such, we will concentrate our discussion in the next few paragraphs to only intestate successions.
If the Deceased Has No Will
When an individual dies without a will, one must determine whether their property is community or separate property. Although the definition of community property is more complex than what is stated here, generally property acquired by either spouse during marriage is considered community property and usually, each spouse owns half of the community property during marriage. As with community property, there are more permutations on what can be considered separate property, however, it frequently falls within the definitions stated here: (1) Property acquired before marriage; (2) property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; and (3) property acquired by a spouse by inheritance or donation to him individually.
After one determines whether the property of the deceased is community or separate property, the next step is to establish what familial connection the successors have to the deceased. Once you have all these data points, one can determine how the deceased’s estate is distributed among his/her successors. The table below depicts how this distribution is determined, by showing the interplay between the classification of property (community vs. separate) and the familial connection the successors have to the deceased. This interplay establishes the order of priority of inheritance in Louisiana when the deceased dies without a will.
Order of Inheritance in Louisiana – Deceased Died Without Will
|SEPARATE PROPERTY||COMMUNITY PROPERTY|
|1) To children or their descendants if children are deceased. If nobody falls within this category then move to No. 2.||1) To children or their descendants if children are deceased. However, surviving spouse would have usufruct* on property. If nobody falls within this category then move to No. 2.|
|2) To brothers and sisters (if they are deceased, then their descendants). However, parent(s) would have usufruct* on the property. If no brothers, sisters or descendants from them, then move to No. 3.||2) To spouse. If there is no spouse, then move to No. 3.|
|3) To parents. If parents are deceased, then move to No. 4.||3) Estate is treated as separate property. Please reference separate property column.|
|4) To spouse. If there is no spouse, then move to No. 5.|
|5) To ascendants (like grandparents) and if non exist, to collaterals.^|
Let me first state that the purpose of what is written in the next few sentences about usufructs is to instruct the reader on the very basics of usufructs, as the subject is very multifaceted and complex.
A “usufruct” is a real right of limited duration on the property of another. The holder of the usufruct, the “usufructuary,” has the right to use the property and enjoy its fruits (some examples are products of the earth or animals and rentals).
The application of this concept to what is marked with an asterisk ( * ) in the above table is that where the deceased left no will, had no descendants, and his/her brothers and sisters inherit his/her separate property, then the deceased’s parents (if they survived the deceased) will have the usufruct over the separate property. Also, where the deceased left no will, had descendants, and the children of the deceased inherit his/her community property, then any surviving spouse will have the usufruct over that property.
A house is a good example to illustrate how this legal concept works. One individual may inherit the right to use the house and as such, can receive rents if the house is leased while another individual inherits the ownership of the house. This owner (referred to as the “naked owner”) can sell or mortgage their rights to the house; however, this has no effect on the usufructuary. When the usufructuary dies, the naked owner becomes “full owner” of the house.
^Ascendants and collaterals
For more on the rights of ascendants and collaterals, or what happens if no ascendants or collaterals exist, please call us at 504-324-8716.
The reality is that the previous paragraphs only scrape the surface of Succession law in Louisiana. Depending on the circumstances, there are so many other questions that could arise, such as:
1) Do I need a will?;
2) What is a “forced heir?”
3) Does all property have to go through a succession (i.e. retirement assets like 401(k), insurance policies, annuities)?;
4) What is “representation” and how does it work under Louisiana law?;
5) Can I renounce my share of the succession?;
6) Can I be declared unworthy and be deprived of the right to inherit?; and
7) Can adopted children and those born outside of marriage inherit?
If you find yourself in a quandary pertaining to these questions or anything else involving Succession law, please don’t hesitate to call us at 504-324-8716. We are here to help!