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:
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What does happen to property
when someone dies? There are two things
that are looked at first: was the property community or separate; and, 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. |
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Can this be changed
with a will? Yes, most certainly. A will can specify that a spouse
come 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. |
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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. |
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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 are 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. |
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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: |
The following thread appeared recently in the Probate section of the La-Legal Forums:
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."