Successions

ON POINT LEGAL wants to clarify the legal process that affects a person’s things, and his family, after death. First, let’s explain some basic concepts and terms.

You may have heard the word Succession or Probate in the context of someone’s death. “Succession” means many people or things following one after the other. That general definition identifies the concept of estate succession well. A person dies and leaves stuff on earth (you can’t take it with you) and this legal process is a just way to give that stuff to future generations. The Court formally acknowledges the right to keep this stuff so people interested in receiving this stuff don’t shoot at each other in the streets at High Noon.

Generally, when a person dies, his successors immediately inherit (= acquire) the property he owned. Even though the inheritance is immediate, our laws postpone taking possession of the property until payment of this person’s debts, if any. Afterwards, the deceased’s “successors” inherit the remaining assets. A successor is the generic legal name for people who will inherit someone’s assets or property. An heir (pronounced like “air”) is a successor who inherits according to laws that regulate the process IF a deceased did not sign a Last Will & Testament. A Legatee (pronounced like “leg-ah-tee”) is the legal name applied to a successor who inherits according to the deceased’s Last Will & Testament.

An estate is a name given to a person’s collective assets and debts–all his rights, interests, and obligations. This is what is being referred to when you hear about estate planning! Hopefully, a person engaged in some level of basic estate planning before he dies and his estate succeeds to his successors.

You may think of this process as the probate process; used generally, probate has become synonymous for the process of succession of an estate to successors. Technically, probate refers to proving someone’s Last Will & Testament is not a forgery or was valid on the date of death. But over time, words like probate, or estate settlement, or succession have become to represent the same concept.

It’s common to hear others talk fearfully about how the probate process costs too much, takes too long, or is not necessary.

It Costs Too Much?

A succession case has the potential to costs a lot in fees and related expenses just like any other legal case IF the circumstances are complicated and the goals are hard to achieve. Whether people get along with each other affects the projected budget. A successor must occasionally advance money to initially pay for fees and expenses to get started. At some point, if the deceased acquired assets (i.e., property), those assets can be used to reimburse the person who advanced the deposit. If the circumstances are generally clear cut and simple, and no one is fighting, then the total cost of the project should be two to three thousand. And the assets of the deceased will pay for it. In other more tricky and contentious cases, On Point Legal breaks down the project into individual phases and gives the client an educated estimate of the fees and expenses for each phase. Whether the estimates are worth paying or not is a topic of conversation with your trusted attorney. He will help you decide and make a wise decision.

 

It Takes Too Long?

Whether the process is over “quickly” (as in a few weeks) depends on whether circumstances are complicated and the goals hard to achieve. Once completed documents are provided to the Court for approval, a reasonable expectation for a reply from the Court is two weeks, give or take. If there is an issue that cannot be decided by one side only, then a “hearing” in Court is required and the Court may schedule that hearing in 30-45 days. If there are successors who live all over the country, or have unresolved differences which create conflict, or there’s a business to wind-down, or there’s property to sell and the market is slow, the process may drag on. However, your attorney should be working to push the project forward as best as possible by communicating and doing lots of little things to chip-away at the to dos.

 

It’s Not Necessary?

Whether to engage the Court immediately after someone’s death is debatable, and for many families, its best to wait a little while for the grieving process unfold. Nevertheless, a succession is inevitable because our current business and societal systems require it. We have heard about, and worked with, families who waited for generations to request their inheritance rights be formally recognized or acknowledged through the Louisiana succession process. Waiting generations is not recommended! What initially could have been a small and straight forward process would then become a complex project. But a complex project was then necessary because the remaining successors could not use the property for commerce (i.e., sell it or use the equity as collateral for a loan) because they did not have papers that proved it was their property through inheritance.

So, this process is necessary at some point and if it’s necessary, it’s also best to hire a team like ON POINT LEGAL who has the know-how and experience to make the best of any circumstance you introduce to us.

When you think it’s time to look for legal help, search for a legal team who will charge fair fees and who cares about moving the process forward, so it doesn’t take forever.

Successions Resources

Successions

Get the information you need about successions. See our most frequently asked questions and additional resources below.

What does the term succession mean?

In Louisiana, a succession is the process of settling a deceased person’s estate. This usually includes paying the debts of the deceased and then distributing his or her property to the heirs. This process is also referred to as “probate” in other states.

What is the difference between testate and intestate successions?

In Louisiana, successions are either testate or intestate. If someone dies with a will their succession will be testate and the will determines how the property is divided. If someone dies without a will, then the succession is intestate and Louisiana law will control which family members will inherit property and in what portion.

What is does the term usufruct mean?

Usufruct refers to the right granted to someone to enjoy the use of another’s property, but without destruction or depletion of the property. You can also refer to the person that has such rights as the usufruct. The naked owner is the person that actually owns the property subject of the usufruct.

How do I know if the property is separate or community?

Generally, separate property includes property that is acquired by each spouse before they are married. It also includes property a spouse may receive during the marriage as inheritance or property designated as a gift given to one spouse; it may also include items purchased with separate funds -with proof the funds are in fact separate. Community property refers to the things acquired by a couple during their marriage.

What is the first thing I should do if I lose a loved one?

Collect and preserve the deceased’s important documents. This includes, determining if there is a will and locating the original. As soon as possible, order multiple copies of his or her death certificate. Collect all current bills, mortgages and any other documents reflecting debts the deceased may have in his or her name. You will also want to collect any documents that serve as proof of property ownership, for example, vehicle title, act of sale, act of donation or act of transfer. Contact the deceased’s banking institutions and advise them of his or her death and document the bank account information including the current balance, names on the account and the account number, if possible.

Next, schedule an appointment with an attorney and bring the above documents to the meeting.

Does all property go through succession?

No. Property that has a designated beneficiary does not go through succession. This includes, annuities, life insurance proceeds, IRAs and 401(k)s.

What happens when a person dies without a will?

When a person dies without a will or their will is determined to be invalid, his or her estate passes to the heirs or certain family members by intestate succession. Each state has its own intestate laws, in Louisiana, the following apply:

If you have children, but no spouse, your children will inherit everything in equal portions.

If you have children, siblings and/or parents, but no spouse, your children will inherit everything in equal portions.

If you have a spouse, but no parents, siblings or children, your spouse will inherit everything.

If you have parents, but no spouse, children or siblings, your parents will inherit everything.

If you have siblings, but no spouse, children or parents, your siblings will inherit everything in equal portions.

If you have a spouse and children, your spouse will get usufruct over or the right to use your share of the community property while he or she is alive. Your children will inherit your separate property and your share of community property, subject to your surviving spouse’s right to use it for life.

If you have a spouse and parents, but no children or siblings, your spouse will inherit your community property and your parents will inherit your separate property.

If you have a spouse and siblings, but no children or parents, your spouse will inherit your community property and your siblings will inherit your separate property – divided in equal portions.

If you have siblings and parents, but spouse or children, your siblings will inherit everything but your parents get usufruct over or the right to use your property while they are alive.

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