When a person passes away, for his or her estate to be legally transmitted to the heirs, generally a succession should be judicially opened by filing certain pleadings, motions, and documents with the appropriate court.  Even if the decedent left a last will and testament, the testament, by itself, is insufficient to transfer ownership of the decedent’s property.  A succession case must be filed in a proper court so that the judge can bless the testament (called “probate”) as valid under Louisiana law.  Whether the decedent died testate (with a testament) or intestate (without a testament), the goal of the succession case is to ask the judge, once he or she is satisfied that all the legal papers are in order, to sign a judgment of possession recognizing the transfer of rights in the decedent’s property to all legal heirs.  This process involves several steps.

Gathering Documents

The first step is the gathering of documents necessary to prepare the proper pleadings and other documents that will be filed.  A search for the last will and testament should be conducted promptly.  When located, the document will need to be reviewed to determine whether it is legally valid, who it identifies as the executor with authority to manage the decedent’s estate, identification of legatees to whom the decedent left property, and the disposition of all items of property.  If multiple testaments exist, they will need to be reviewed to determine which, if any of them, is valid.  There may be a duty to present multiple testaments to the judge, even while advocating for only one of them to be determined valid.  If no testament is located, but one is believed to exist, a notary may be appointed by the judge to search bank boxes, safety deposit vaults, and other places where the testament may be found.

A death certificate issued by the State of Louisiana should be obtained.  Documents should be gathered to facilitate identification, description, and statement of a monetary value for all assets of the estate.  Documents describing the assets may include automobile registration certificates for motor vehicles, acts of sale for real estate, statements from investment managers for stocks, bonds, and other investments, and bank statements for financial accounts.  In addressing liabilities, mortgage statements, loan documents, and invoices from the funeral home, among other documents, may need to be consulted.

Preparation of Pleadings

Multiple pleadings will be prepared, including one or more petitions, affidavits, and proposed orders for the judge.  The petition will be verified by the heir or heirs signing it, which means the facts stated in the petition are made under oath.  Hence, careful review of all factual allegations made in the petition will be important.  The petition should identify the salient facts surrounding the decedent’s death, all legal heirs, information regarding any last will and testament, whether an administration is needed, and other important facts and related requests for action by the court.

Affidavits of death, domicile, and heirship will be drafted, executed, and notarized.  These affidavits—like the petition—will be made under oath and serve as evidence of key facts that will need to be reviewed by the judge to whom the succession case is allotted.  The executor will need to execute his oath to faithfully discharge his or her duties, which can be done via affidavit.

Other papers may need to be included, based upon review of the facts of the case: a proposed order of probate for the judge to sign, proposed letters testamentary to appoint an executor, and a sworn detailed descriptive list of assets.

Filing the Succession

Before the succession is filed, it should be determined which Court has jurisdiction and proper venue to adjudicate the succession, based on where the decedent was domiciled, whether he or she owned real estate, and where the real estate was located.

If the decedent died testate, the judge will examine the testament to determine its legitimacy.  If the testament is valid and no one contests it, the judge will probate it—grant it legal effect.  If a person files an objection to the testament, a contested legal proceeding will ensue, likely leading to a trial.  If more than one testament is offered in evidence, the judge will decide which testament governs, or if no testament is found valid, that the property will devolve intestate according to the default inheritance rules.  Even after a will is probated, an interested party may file a petition to annul the probated testament, which would then require an additional hearing.

Whether the decedent died testate or intestate, the judge also will decide whether the case can proceed without administration, with independent administration, or with full administration.  The easiest and most cost-effective option is the simple succession without administration, which may be used if estate debts are relatively insignificant compared to estate assets.  If the succession requires administration, an administrator will manage assets of the estate and address estate liabilities (including potential claims against the estate) during the process leading to the judgment of possession.  Unless the administration is “independent,” the administrator will need to obtain approval from the court to deal with the estate, including a detailed process for any transfers of real estate.

Judgment of Possession

At the conclusion of the succession, the judge will sign a judgment of possession.  Whether the heirs are determined to inherit through a valid testament, or in the absence of a valid testament, under the default inheritance rules, the judgment of possession will determine the final distribution of all items of property left by the decedent at death.

The judgment of possession will recognize the heirs and any surviving spouse of the decedent and formally transfer ownership of estate property.  The judgment proves the heirs’ right to possess property.  It is a very important document so that banks, mortgage companies, investment agents, governmental agencies (such as the Office of Motor Vehicles), and other institutions will recognize the ownership of assets by the heirs who have inherited the decedent’s property.

If the judgment of possession transfers real estate, the judgment likely will need to be recorded in the appropriate land records of the parish where the property is located.  Thus, the succession is a vital mechanism for ensuring a valid chain of title so that heirs to property can enjoy the benefits of the legal rights transmitted to them—including the ability to insure the property, finance the property, sell the property, and/or leave it to their own heirs one day.

Legal Representation in a Succession Proceeding

Multiple additional features of Louisiana succession law exist beyond the ones discussed above.  Clayton Law Firm frequently handles succession cases for clients.  We take on the simple and the complex, engage in filing valid testaments and challenging invalid testaments, represent heirs seeking property from estates, and represent those with legitimate claims against estates.  Contact us today by clicking the link below.