LOUISIANA SUCCESSION LAW (Probate)

    Inheritance Law

    Louisiana has very strict
    probate and succession
    laws that control where
    property goes after someone dies. If there is no
    will, the state has a succession order set forth
    under the statutes in which certain assumptions
    are made. The first assumption is that the
    spouse should not inherit anything from the
    other spouse if there are children. The next
    assumption is that for separate property, nieces
    and nephews should inherit before a spouse.
    This usually comes as a big surprise to the
    surviving spouse.

    Major changes

    The Louisiana Legislature enacted some major
    changes to Louisiana succession law. Once of
    the major changes was to begin the elimination
    of our venerable inheritance tax. This tax has
    often been confusing and has caught heirs by
    surprise at times. On July 1 of 2004 it was
    eliminated for those dying on or after that date.
    However, the tax will still be applied for those
    who do not open a succession within nine
    months of death or file a trust with the
    Department of Revenue. This will catch quite a
    few people.

    Related Topics

    Alternates to probate: There are situations
    where probate is not necessary. In Louisiana,
    probate is not required is there is no will, no real
    estate, and the estate is under $50,000 in total
    value.

    Probate can also be avoided with various estate
    planning techniques, such as revocable (living)
    or irrevocable trusts.

    Types of successions

    Successions in Louisiana are considered either
    testate or intestate. If the deceased had a will
    that was probated, then the succession is
    considered testate. If the deceased did not have
    a will, then the succession is intestate. With a
    testate succession, the provisions of a will
    control most of the dispositions. In an intestate
    succession, the statutes determine who inherits
    and in what proportions. Here are the most
    common questions about probate that we have
    encountered:

    Probate questions:

    What does happen to property when someone
    dies? There are two things that are looked at:
    (1) was the property community or separate;
    and, (2) what relationship are the survivors to
    the deceased? Community property is usually
    property accumulated by a couple while they are
    married (unless there was a marriage contract).
    Examples of separate property would be
    property owned before marriage, inherited
    property, or property given to one of the
    spouses. In general, a spouse inherits none of
    the other spouse's separate property. A spouse
    also inherits none of the other spouse's
    community property unless there are no children
    of the marriage.

    Can this be changed with a will? Yes, most
    certainly. A will can specify that a spouse comes
    ahead of other heirs. If there are forced heirs, the
    forced heirs have to inherit a portion, but the will
    can provide that the remainder go to the spouse
    (or anyone else named in the will). The will can
    also give the spouse a lifetime usufruct over the
    forced portion. A usufruct is a limited right to the
    use of a thing. In other words, if you have a
    usufruct over stock, you would be entitled to the
    dividends from that stock. A usufruct granted in
    a will can even be worded to allow the person
    with the usufruct to sell the stock.

    What is a forced heir? At this point in time, a
    forced heir is any child of the deceased who is
    under the age of 24 years. Once a child reaches
    age 24, he or she is no longer a forced heir. A
    forced heir can also be a child, regardless of
    age, who is permanently disabled. So, you could
    have a child who is a forced heir until age 24, no
    longer is a forced heir, and then has a stroke at
    age 40 which makes him a forced heir once
    again.

    Does all property have to go through probate?
    Some types of property are not considered part
    of your estate in Louisiana. Normally, property
    that is paid directly to a named payee by a third
    party is not subject to succession laws. For
    example, any retirement asset, like an IRA or 401
    (k), would not have to go through probate and
    would not be subject to Louisiana's inheritance
    tax. It is important, however, to remember to
    have alternate beneficiaries named on the
    account. If you name only your spouse and both
    of you die, the asset would have to go through
    probate. Proceeds of life insurance are another
    example of an asset that does not go through
    probate as long as there is a living named
    beneficiary.

    Do I need a will? A will can do many things. The
    most important thing a will can do is change the
    order of succession that Louisiana provides in
    the absence of a will. A will can also do many
    other things, for example: 1) name a guardian for
    minor children;

    2) name an independent executor which can
    save probate costs;

    3) create a trust for grandchildren, special needs
    or spendthrift heirs;

    4) for larger estates, make provisions to save
    estate taxes;

    5) remove any doubt as to what you wanted
    after your death.

    If none of this is important to you, then you may
    be satisfied with the Order of Succession that
    Louisiana has for you:

    Typical Question:

    Q: "My boyfriend and I have lived together for 7
    years.  We have a child together, he also has
    two children from a previous marriage. We have
    assets that are paid in full under both our names
    and some that are under just his or my name,
    and some that are not paid out yet. Our home is
    under just his name. He does not have a will nor
    do I. My question is, if something would happen
    to him would I lose everything to his ex and their
    two children?"

    A: "Everything in his estate would go to his
    three children. Since you are not married, you
    would receive nothing. Things in your estate are
    yours regardless of what happens to him.
    Things you have purchased with your own
    money or things you had before you knew him
    belong to you. So, if everything in his estate
    goes to his three children, in effect the ex gets
    control of what goes to her two children
    (assuming they are minors) and one third goes
    to your child under your control."

    Q: "Thank you.  But that is horrible. He thinks I
    will get it all. I will have to tell him he is very
    wrong. What if he has a will that states I get all
    or a percentage of his estate. Do I still get
    nothing?"

    A: "He can leave you everything in a will. But,
    any children under the age of 24 are forced heirs
    which means they have to get a percentage of
    his estate. Assuming two of the kids are under
    24, he could leave you one-half of his estate and
    the kids the other half. The forced portion that
    has to go to the kids is 25% if there is one kid or
    50% if there are two or more kids. Whether there
    are two or twenty, they have to divide the fifty
    percent among themselves."

    Order of Succession in Louisiana

    Community Property

    1. To children or children's descendants, with
    usufruct to spouse. If nobody exists in this
    group, then...............
    2. To spouse, if there are no children or
    descendants of children. If nobody exists in this
    group, then.................
    3. To brothers and sisters with usufruct to
    parents, if parents are alive. If nobody exists in
    this group, then....................
    4. To nieces and nephews, or their descendants,
    with usufruct to parents, if parents are alive. If
    nobody exists in this group, then............
    5. To parents, if there are no brothers or sisters,
    nieces or nephews, or other descendants. If
    nobody exists in this group, then................
    6. To grandparents or other ascendants. If
    nobody exists in this group, then.................
    7. To nearest collateral relative. If nobody exists
    in this group, then........
    8. To State of Louisiana.

    Separate Property

    1. To children or children's descendants. If
    nobody exists in this group, then...............
    2. To brothers and sisters with usufruct to
    parents, if parents are alive. If nobody exists in
    this group, then...................
    3. To nieces and nephews, or their descendants,
    with usufruct to parents, if parents are alive. If
    nobody exists in this group, then.............
    4. To parents, if there are no brothers or sisters,
    nieces or nephews, or other descendants. If
    nobody exists in this group, then................
    5. To spouse. If there is no spouse,
    then..................
    6. To grandparents or other ascendants. If
    nobody exists in this group, then................
    7. To nearest collateral relative. If nobody exists
    in this group, then.........
    8. To State of Louisiana.

Source: la-legal.com  THIS INFORMATION IS NOT MEANT TO BE A SUBSTITUTE FOR
LEGAL ADVICE.  WE RECOMMEND ALL WILLS, ESTATE PLANNING, OR OTHER
ESTATE MATTERS BE HANDLED BY AN ATTORNEY COMPETENT IN LOUISIANA
SUCCESSION LAW.
 
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