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What are "Successions"?

The term "successions" refers to the body of law concerning the distribution of a person's property after he has died. Depending on the value of the property, the type of property, the debts of the decedent and some other factors, the process may be very simple or it may be very complicated.

An individual case will usually be referred to as the "Succession of John Doe" or simply "the succession." For ease of reference, attorneys will often refer to "the succession" as if it is a separate entity, for example they may refer to "rights belonging to the succession" or "debts of the succession." In reality, the succession is not a separate entity.

If an individual executed a valid testament , he is said to have died testate . If he had not executed a testament, if he had revoked his testament before he died, or if a testament is declared invalid by a court of law, he is said to have died intestate .

This website will answer most of the common questions concerning Louisiana's succession law and procedures and will tell you what you should do if someone close to you has died.

What should I do right away if someone close to me has died?

The first thing you should do when someone dies is to preserve the information that will be needed to conclude the succession. This information consists of information about the decedent, such as the date he died, where he lived when he died, whether he executed a valid testament before he died, who are his heirs or legatees and what property and liabilities did he leave behind.

A good practice is to gather together in one place all of the bills and bank statements that are received in the mail over the next 30 days or longer. If the decedent had any stock, bonds or other securities, it would be useful to retain a listing, such as a newspaper listing, of the quotes for the day he died.

It is also important to retain all of the bills for the funeral and burial. These bills are considered "administrative expenses" of the succession, and are treated differently from all other bills which the decedent had at the time he died. If the decedent had pre-paid his funeral expenses, you should retain those records.

If the decedent died testate , it is important to secure the original testament . If you try to probate a copy of a testament, the judge will assume that the decedent destroyed the original with the intent that it be revoked.

When should I open Succession?

Generally speaking, it is a good idea to not delay handling succession matters. If you delay, important documents can be lost, witnesses needed to sign affidavits or testify in court if that is needed can move away or die. These events may complicate handling the succession and increase the cost. If you delay, assets of the succession may deteriorate or lose value.

As of January 1, 2012, Louisiana no longer collects inheritance taxes, so there are no time constraints on opening succession to meet tax deadlines for Louisiana inheritance taxes. If the estate is greater than $5.12 million dollars, a United States Estate and Generation Skipping Tax will be due within 9 months of the date of death. As the law currently stands, for deaths that occur after December 31, 2012, the amount that is exempt from federal estate taxes will drop to $1 million, unless Congress changes that before then.

It may also be necessary to open succession early to pay the urgent debts of the decedent, such as medical bills and funeral bills, or to obtain access to a safety deposit box which the decedent had rented.

Do I have to open succession in every case?

A judicial succession proceeding is how the law recognizes the transfer of immovable property (that is, real estate), allows for the transfer of bank accounts and stocks and bonds or any other assets that are registered in the name of the deceased, and arranges for the payment of the debts of the decedent. If an individual dies without owning any of those assets, and without having substantial debt, it may not be necessary to open his succession.

It is also necessary to open succession if any inheritance taxes are due, even if the deceased didn't own any of the assets described above. To determine whether any inheritance taxes are due, look at the section of this website on Taxes.

Deposits with a bank, savings and loan or credit union that are in an alternative account (for example, accounts in the name of Mr. or Mrs. John Doe) may be withdrawn by the surviving account holder, but in rare cases, the bank may require the surviving account holder to execute an affidavit. Deposits only in the name of the decedent that are less than $1,000 may be withdrawn by the heirs by executing an affidavit, but only when the decedent died intestate . A surviving spouse can also execute an affidavit and withdraw up to $10,000 from an account of the decedent. When this occurs, the bank must report the payment to the collector of revenue within 7 days. Please note that the fact that you can have access to the accounts does not mean that the person with access becomes the owner of that money. Ownership of the money will be determined by the deceased person’s testament, if he had one, or by the rules of intestacy.

Some bank accounts provide who will become the owner of the account if the depositor dies. These are called “Due on Death” accounts and are sometimes abbreviated “D.O.D.” For those accounts, the bank will usually require a certified death certificate.

The title to an automobile may be transferred by executing a form from the Office of Motor Vehicles called an Affidavit of Heirship. This will allow you to transfer the title so that you can secure insurance and maintain a current license plate and inspection sticker. To download and print a copy of this form, click below.

Vehicle Affidavit of Heirship (PDF Format)

If I have to open succession, what is involved?

There are many different procedures for handling successions, depending on the size of the assets in the succession and whether there are any complications with the succession, such as whether a testament is challenged as not being in proper form, whether there are forced heirs , or other matters.

When Judicial Proceedings Unnecessary. This is sometimes called an extra-judicial succession . It is not necessary to judicially open a small succession when the decedent died intestate, left no immovable property and his heirs are his descendants, ascendants, spouse, or brothers or sisters or descendants of brothers or sisters. In this case, the heirs can execute an affidavit and secure a stamp on the affidavit from the inheritance tax collector that no taxes are due. This affidavit is authority for banks, stock transfer agents, and for anyone holding tangible property of the decedent to deliver that property to his heirs.

The statutes that created this procedure state that the affidavit, so endorsed by the inheritance tax collector, "shall be full and sufficient authority for the payment or delivery of the money or property of the deceased. . ." The statute doesn't clearly state that the holder of the property must comply with the request for delivery, but talks in terms of the holder of the property being absolved from liability to anyone else if he delivers the property based upon this authority. Because transfer agents for publicly traded stocks are much more familiar with Judgments of Possession, we recommend that if the assets of the succession include publicly traded stocks or securities, this extra judicial procedure not be used. Instead, we recommend that in those circumstances, you use a Judicial Proceeding, Acceptance without Administration.

Judicial Proceedings, Acceptance without Administration. This is the most common form of succession procedure. It is sometimes referred to as a "Simple Putting in Possession." It is available whenever the succession is clearly solvent and there is no need for an administration. See the next section to determine if an administration is necessary.

This procedure requires the heirs and surviving spouse to execute certain pleadings to be filed in the court that has jurisdiction over the succession, that the attorney who signs the pleadings shows certain documentary proof establishing the decedent's death, his domicile at the time of his death, who his heirs are, whether he left a valid testament , a copy of that testament and proof of the testament if there is one, proof of the assets and liabilities of the decedent, proof of the administrative expenses of the succession, and proof that all inheritance taxes have been paid. When all of these things have been properly brought before the judge, he will sign the Judgment of Possession . This Judgment of Possession will recognize that property which is owned by the former spouse and will recognize that property over which the former spouse will have usufruct . The Judgment of Possession will also declare who the decedent's heirs or legatees are and will recognize them as owners of the property they inherit. The Judgment of Possession also will contain an order by the court that everyone who holds property of the decedent deliver that property to the heirs and surviving spouse.

This procedure requires the heirs and surviving spouse to execute certain documents to be filed in the court that has jurisdiction over the succession. Once they have been executed, the attorney presents them to the judge. These documents establish the jurisdiction of the court, the decedent's death, his domicile at the time of his death, who are his heirs, whether he left a valid testament , any testament that the decedent executed, proof of the assets and liabilities of the decedent, proof of the administrative expenses of the succession, and proof that all inheritance taxes have been paid. When all of these things have been properly filed, the judge will sign the Judgment of Possession . The Judgment of Possession will declare who are the decedent's heirs or legatees and will recognize them as owners of the property they inherit. The Judgment of Possession also will contain an order by the court that everyone who holds property of the decedent deliver that property to the heirs and surviving spouse.

It won't be necessary for anyone other than the attorney for the succession to appear in court when this procedure is used, but you will be required to sign the pleadings and affidavits which the attorney for the succession will need to prove the facts necessary to obtain the Judgment of Possession .

Judicial Proceeding, Administration of the Succession. This is the most complex form of succession procedure. It is necessary whenever there needs to be a judicial determination of any of the following matters:

  • Whether a testament is valid. A testament can be declared invalid if the testator was mentally incapable of executing a testament at the time he executed it, if the testament was the product of fraud, duress or undue influence by a third person, or if the testament did not follow the correct form required for a testament.
  • Whether an otherwise valid testament has been revoked by the testator prior to his death.
  • Whether the decedent was solvent at the time he died. Sometimes, it is clear that the decedent was solvent at the time he died. Other times, it may be necessary to determine the value of property which he owned at the time of his death, or there may be a question about how much he owed, such as when there is a pending lawsuit against the decedent.
  • If the decedent was clearly insolvent and assets he owned must be sold and the proceeds paid to his creditors.
  • When there is a challenge by a forced heir that he has not received that portion of the assets of the decedent that is required by law.
  • If there are absent heirs .
  • If it is necessary to determine which heirs inherit what property.

Generally speaking, when a succession is administered, someone must be appointed the succession representative . The succession representative will be responsible for collecting all of the assets of the decedent, determining what debts are owed by the succession and seeing that they are paid, and initiating the court proceedings to resolve any questions that brought about the need for an administration. The succession representative owes a fiduciary duty to the heirs and creditors of the succession. The succession representative can be an heir or legatee . The testator usually names who he wants to be the succession representative in the testament, but if he does not do so or if the named representative refuses to serve, the court will pick the representative from among the heirs or legatees, according to law.

Once all of the issues have been resolved in court, the succession representative will propose a Tableau of Distribution , which explains how the assets of the succession will be divided. If there is no opposition to the tableau, it can be homologated by the judge, and the assets will then be distributed according to the tableau. If there is an opposition to the tableau, there will be a trial, and after the trial, the judge will decide whether to homologate the tableau despite the opposition. The succession representative will also be obligated to file an accounting of his administration annually and at the conclusion of the succession.

The succession representative is entitled to a fee for his services. The fee is 2˝% of the gross estate, but the judge can award more if the circumstances warrant.

What taxes are due on an inheritance?

 

Louisiana no longer taxes inheritances. The federal government taxes inheritances when the net estate exceeds the applicable exclusion, which is shown in the following table:

For deaths occurring during the years

The applicable exclusion is

2002, and 2003

$1,000,000.00

2004, and 2005

$1,500,000.00

2006, 2007, and 2008

$2,000,000.00

2009

$3,500,000.00

2010

no taxes at all

2011

$5,000,000.00

2012

$5,120,000.00

2013

$5,250,000.00

2014

$5,340,000.00

Currently, the law provides that on January 1, 2013, the applicable exclusion will return to $1,000,000, unless Congress does something to change that. Most people in the estate planning field believe that Congress will enact some change before then. In addition, for the situation where both spouses of a marriage die in 2011 or 2012, the law allows the unused portion of the exclusion of the first spouse to die to be added to the exclusion of the second spouse to die. For example, if the first spouse dies in 2011, and has an estate valued at $3,000,000, there is $2,000,000 of the exclusion which was not used. If the second dies before December 31, 2012, that unused exclusion will be available, raising the exclusion to $7,000,000 for the second spouse. To take advantage of this, it will be necessary to file a federal estate tax return for the estate of the first spouse to die.

For married couples, if the estate of the first spouse to die is not large enough to use all of the applicable exclusion, there is a way that unused part of that exclusion can be transferred to the estate of the second spouse to die. To do that, it is necessary for a federal estate tax return for the estate of the first spouse to die to be timely filed. This means that it must be filed within 9 months of the date of death.

LOUISIANA ESTATE TRANSFER TAXES. Louisiana has an Estate Transfer Tax for estates that are large enough to require a federal Estate (and Generation Skipping Transfer) Tax Return. Under the federal taxes, there is a credit for state death taxes that are paid, up to a certain amount. The Louisiana Estate Transfer Tax is designed to take advantage of the federal tax credit, and equals the amount of that credit. If the amount of Louisiana Inheritance Tax is larger than the federal death tax credit, there is no Louisiana Estate Transfer Tax.

UNITED STATES ESTATE (AND GENERATION SKIPPING TRANSFER) TAXES. The United States Estate (and Generation Skipping Transfer) Tax Return is commonly called the form 706 tax return. This tax is different from the Louisiana Tax Return because it is paid by the estate, not by the individual heirs. To calculate whether a return must be filed, you must first determine whether the decedent made any donations to any one person of more than the exempt amount in any one year. For calendar year 2009, that amount is $13,000. That amount will be added to the decedent's estate, and if that estate exceeds applicable exclusion the amount above the exclusion will be taxed at a much higher rate, anywhere from 38% to 55%. Amounts inherited by a surviving spouse are not taxed. We recommend that if a federal return must be filed, that a qualified C.P.A. or other tax professional file that return. If you do not have a C.P.A. or other tax professional, we can recommend one for you.

Who inherits the property?

If the decedent dies testate, his property is distributed in accordance with his testament . If the decedent died intestate , his property is inherited in the following order:

  • His descendants. If one of his children pre deceased him, that child's children would represent the predeceased child in the succession. Each child or represented child would inherit an equal portion. A surviving spouse will have usufruct over that property which had been community property. The surviving spouse may be required to post security if the usufruct covers property to be inherited by a forced heir .
  • If the decedent has no descendants but was married, his surviving spouse would inherit the community property.
  • If the decedent has no descendants, his separate property will be inherited by his brothers and sisters, or their children if any of them have predeceased the decedent, subject to a usufruct in favor of his parents. Half brothers and half sisters inherit according to their lines, thus they may inherit only a half share, and that half share may or may not be subject to a usufruct in favor of their parent. If there are brothers or sisters on only one side, they inherit to the exclusion of all others.
  • If the decedent has no descendants and no brothers or sisters or descendants of them, his property is inherited by his parents.
  • If the decedent leaves neither descendants, nor parents, nor brothers or sisters or descendants of them, his separate property is inherited by his spouse.
  • If the decedent leaves neither descendants, nor surviving spouse, nor parents nor brothers or sisters or descendants of either of them, his property is inherited by his nearest ascendants, or if no ascendants, by his nearest collateral relations.
What is the current status of forced heirship in Louisiana?

Forced heirs are children of the deceased who have not reached their 24th birthday or who are mentally or physically disabled.

Louisiana's Constitution requires that all children who are "twenty three years of age or younger" when their parent dies are forced heirs. By statute, the legislature established that this means that any child who has not yet reached his or her 24th birthday is a forced heir. Grandchildren who represent a predeceased child will only be a forced heir if the predeceased child would not have yet reached his or her 24th birthday.

Forced heirs also include children of the decedent, no matter how old, if that child is unable to care for himself or herself because of physical or mental infirmities. The act also says that a disabled grandchild who represents a predeceased child will be a forced heir no matter how old that pre deceased child would have been when the decedent died.

“Permanently disabled children” includes children who have an inherited, incurable disease that may in the future render them incapable of caring for themselves.

If the decedent leaves one forced heir, the forced portion must be at least one fourth of the decedent's property. If there are two or more forced heirs, the forced portion is one half of the decedent's property. However, in no event will the forced portion exceed that share which the forced heir would inherit if the decedent died intestate .

When calculating the forced portion, all donations made by the decedent within the last three years of his life are included in his property.

If the decedent leaves the usufruct over the forced portion to his surviving spouse, that does not impinge the forced portion. The decedent also may leave the forced portion in a trust without impinging the forced portion. The forced heir, however, may require the usufructuary to post security if the usufructuary is not also the parent of the forced heir.

How much will it cost to handle a deceased person's succession and how long will it take?

Most attorney's that handle successions calculate their fee in one of three ways:

  1. An hourly rate, when the attorney bills by the hour for his time,
  2. A percentage of the gross value of the estate, usually between 3% and 5%, or
  3. A flat fee.

Under any of those fee arrangements, you can also expect to pay all costs in addition to the attorney's fees. Those costs will include any taxes that are due, any court costs for filing any pleadings and obtaining any judgment, postage, mileage, and photocopy expenses.

The cost of filing pleadings varies from parish to parish, but are usually between $200 and $550 per case. For every bank account or publicly traded security, you will need a certified copy of the Judgment of Possession , and the clerks of court generally charge from $2 to $5 per page for certified copies. If there is immovable property involved, there will also be the cost of recording the Judgment of Possession in the property transfer records for that parish.

Some succession procedures require that notices be published in the official journal for the parish where the proceeding is filed. In those cases, there will be costs for running those advertisements.

To see the fee schedule charged by Steven J. Koehler, the attorney who prepared this website, click here.

For an extra-judicial succession or for a simple putting in possession , a truly efficient attorney's office can prepare the documents within days of receiving all of the information needed to complete the paperwork. Once you sign the pleadings and affidavits that the attorney will prepare, he can then pay any needed inheritance taxes, file the pleadings, present all of the necessary proof to the court and obtain a judgment, and record the certified copies in the property records and return to you all of the certified copies which you will need within a week or so.

For a succession under judicial administration, it is impossible to determine the length of time that the administration will take. Judicial administration of a succession is a form of litigation. Sometimes it can be resolved in a matter of months and sometimes it will take years. An estimate of how long an individual case may take would have to be made on a case by case basis.

What information will the attorney need to handle a particular succession?

If you have any questions, Ask a Question On-Line, or call us at (504) 309-0812.

Generally speaking, the attorney handling the succession will need to know the following things:

  • About the Decedent
    • The decedent's name, social security number, address at the time of death, date of death, marital status at the time of death and whether he died testate or intestate .
    • If the decedent died testate, the attorney will need the original testament .
    • If the decedent died testate, the attorney will need to know if there are any forced heirs .
  • About the Property
    • A list of all the assets the decedent had when he died, a determination of whether those assets were community property or separate property of the decedent, and the value those assets had on the day the decedent died, a list of the debts the decedent owed when he died, a list of the funeral and burial expenses.
    • For any real estate, the attorney will need a formal legal description of the property, which can be found in the act by which the decedent acquired ownership of the property. If you do not have that document, it can be retrieved from the property records of the parish where the property is located. If the property is covered by a mortgage, that mortgage must also be listed.
  • About the Heirs
    • A list of all the heirs or legatees , their addresses, dates of birth and social security numbers.
    • If any heir or legatee was a minor, the attorney will need to know the name, address and social security number of the person who has custody of that minor.

You can download our Succession Information Form (PDF) for a comprehensive list of the information we need.

The information in this website is to help you understand the law in general. It is not intended to be legal advice.
For advice on your particular situation, please call to schedule a free consultation with one of our attorneys..

 

The Koehler Firm
Metairie, Louisiana
(504) 309-0812