Did you know that many Americans have done little to no end-of-life planning, and most do not have a will? This means that most Americans choose to let the state decide how to manage their affairs after they die.
Jump ahead to these sections:
- Louisiana's Intestacy Laws Explained
- How Does Probate Work in Louisiana If There Is No Will?
- Who Typically Inherits Assets in Louisiana If There Isn't a Will?
- Frequently Asked Questions: Dying Without a Will in Louisiana
A will is an important legal document, and there are many factors to consider when deciding if you need a will. You can use a will to name your executor and choose how to distribute your property after you die.
If you are like most Americans, you do not currently have a will. If you die without a will, you are said to have died "intestate." Instead of a will naming whom your property goes to, the laws of the state where you reside will instead determine who gets your property. These laws are called intestacy laws.
Louisiana's Intestacy Laws Explained
If you die without a will in Louisiana, Louisiana's intestacy laws will determine who gets your estate property through a process called succession. Succession is the process of "settling a deceased person's estate and distributing the property to those who inherit after the debts are
paid.” In some states this process is called probate. We will use both terms interchangeably during this discussion.
How Does Probate Work in Louisiana If There Is No Will?
Probate laws in Louisiana are detailed and straightforward, so you'll know exactly what to expect if there is no will.
In Louisiana, the process commonly known as probate is called succession. Keep in mind that not all property has to go through probate. Certain accounts like IRAs and life insurance policies already have people named who will inherit them and pass them automatically to those people at death. You can check on your retirement plans and insurance policies to find out who those people are. Be sure to keep your plans and policies updated as your life changes.
Marriage, for example, can be a significant life change. In Louisiana, if you are married, this changes the types of property you can own – it is possible to own different types of property if you are married, including separate property and community property. Your separate property is property that you own on your own, including:
- Property owned before marriage.
- Property inherited by one spouse during marriage.
- Property given to only one of the spouses during marriage.
Conversely, community property is property that you and your spouse share. Each spouse owns one-half of the community property during the marriage. Separate property can also become community property, depending on how it is treated during the marriage.
Spouses may wish to keep particular properties separate for many reasons. If you have concerns about whether or not an item is separate property or community property, you should ask an estate planning attorney. An estate planning attorney may be able to advise you on how to keep your property separate.
Now that you know about Louisiana's different types of property, we can start discussing how the probate (or succession) process works if there is no will. The family should open the succession proceedings soon after the decedent's (deceased person's) death. Heirs are those people legally entitled to inherit property.
Succession may be simple or complex, depending on the property involved, the family members, and any debts.
If succession requires an administrator, the court appoints an administrator. The administrator will have many responsibilities, including handling the deceased's debts and distributing the deceased's property to heirs.
In some instances, it may be possible to file for succession without administration by obtaining a judgment of possession. The judgment is simply an order transferring the title of the deceased's assets. This may be possible where all interested parties are in agreement and the estate has little to no debt. The judgment expedites the succession process. In a succession without administration, no administrator is appointed because there is no administration.
In Louisiana, it is also possible to have an independent administrator. The independent administrator has the power to act without court supervision. This can save the estate both time and money.
In some instances, it may be possible to file a small succession by affidavit. An affidavit is a written, sworn statement. This can be done if the value of the decedent’s estate is worth $125,000 or less at the time of death.
At least two persons, including the surviving spouse (if there is one) and an heir may execute the affidavit. The necessary contents of the affidavit are listed in Louisiana Code of Civil Procedure Title V, Article 3432. The affidavit must include information about the deceased, the deceased’s heirs, and the deceased’s property. The two persons must sign and swear to the affidavit.
A small estate affidavit can be useful in limited circumstances. Notably where there are few heirs and no debt. If you have questions about a small succession affidavit, you should contact a probate attorney.
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Who Typically Inherits Assets in Louisiana If There Isn't a Will?
In Louisiana, if you don't have a will, then Louisiana intestacy laws determine how your property is passed down. Louisiana's law passes property in favor of the deceased's close family: descendants (children or grandchildren), ascendants (parents or grandparents), and collaterals (siblings), by blood or by adoption, and their spouse.
In Louisiana, it's essential to understand the concept of "usufruct." This funny-sounding word means that a person can inherit "the right to use property.” The person who inherits this right is called a usufructuary. The usufructuary does not inherit the right to own the property.
When someone inherits a usufruct, someone else "inherits an underlying right to own the property at the death of the usufructuary.” For example, someone may inherit the right to use a house and collect rents from it, and another person may inherit the ownership of the house upon that person's death.
Now that we understand usufruct and usufructuary, we can discuss intestate inheritance. There is an order of inheritance for both community and separate property in Louisiana.
In Louisiana, the deceased's spouse automatically inherits one-half of all community property. The rest is inherited as follows:
- First to the deceased's children (or their descendants, if the children are deceased), with a usufruct to the surviving spouse.
- If there are no children, all the community property goes to the surviving spouse.
- If there is no surviving spouse, the estate is treated as separate property.
Separate property is inherited as follows:
- First to the deceased's children (or their descendants, if the children are deceased).
- If there are no children, then the separate property goes to the deceased's siblings (or to their descendants if any of the siblings are deceased) with a usufruct to the deceased's living parent(s).
- If there are no surviving siblings or descendants, the separate property goes to the deceased's parent(s).
- If there are no surviving parents, the deceased's separate property goes to their surviving spouse.
- If there is no surviving spouse, the deceased's separate property goes to their grandparents or other ascendents.
- If there are no grandparents or ascendents, the deceased's separate property goes to their nearest surviving relative.
- If the deceased has no nearest surviving relative, their property goes to the State of Louisiana.
If you have questions or concerns about who may inherit your property, you should contact an estate planning attorney. An estate planning attorney can answer your questions and help you decide on a plan.
Frequently Asked Questions: Dying Without a Will in Louisiana
Sometimes the more information a person has, the more questions they have. Here, we will answer some frequently asked questions about dying without a will in Louisiana.
What happens when your parent dies without a will?
When your parent dies without a will in Louisiana, what happens will depend on whether they had a surviving spouse. If your parent dies without a will and has no surviving spouse, their property will always pass first to their surviving children (you and your siblings, if you have any). However, if your parent has community property and a surviving spouse, you (and your siblings) get the property, and your parent's surviving spouse receives a usufruct.
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What are a surviving spouse's rights if there's no will?
A surviving spouse may be surprised regarding their rights if there's no will. A surviving spouse may think that they are entitled to the entire estate. However, in some cases, this may not be true.
As discussed above, the surviving spouse has different rights depending on the type of property the deceased had and whether or not there are children. If a person dies without a will, the deceased's surviving spouse "inherits a usufruct over the deceased spouse's one-half of the community property until the surviving spouse's death or remarriage.”
This means that although they may not fully own the community property, they shared with their spouse, they still have a right to benefit and profit from it.
The surviving spouse may be surprised to learn that they are not entitled to all of the property, including their deceased's spouse's separate property. The only way for the surviving spouse to inherit the separate property is if this is written out as such in a will or if there are no surviving children, descendants, siblings, or parents.
If you or your spouse are concerned about your rights, you should consult with an estate planning attorney. An estate planning attorney can advise you regarding your rights and ways to protect your rights.
How do you become an executor of an estate without a will in Louisiana?
It is not technically possible to become an executor of an estate without a will in Louisiana. You can only become an executor of an estate if there is a will and you are named in it to handle the succession affairs.
If a person dies without a will in Louisiana, the person who administers the deceased's succession is called the administrator. The administrator has the same duties as the executor, just a different name.
If a person dies without a will, anyone can apply to be the estate administrator, including the spouse, an heir, or even a creditor. The administrator will be required to take an oath and post a bond.
There is a priority of appointment when it comes to the administrator. Priority of appointment means that if more than one qualified person claims appointment as administrator, the court shall give preference as prescribed by law.
In Louisiana, the court shall give preference in the following order to:
- The best-qualified person among the surviving spouse, competent heirs, or the legal representatives of any incompetent heirs of the deceased.
- The best qualified of the nominees of the surviving spouse, competent heirs, or legal representatives of any incompetent heirs of the deceased.
- The best qualified of the deceased's creditors, a creditor of the deceased's estate, or a co-owner of immovable property with the deceased.
Best qualified means the "claimant best qualified personally, and by training and experience, to administer the succession."
Who is considered next of kin in Louisiana?
Next of kin can have many meanings. It generally means a person's closest living relative. Louisiana law defines many types of familial relationships. When discussing intestate succession, the most important familial relationships are the spouse and parent or child. However, who qualifies as a spouse and/or child is not as straightforward as you might expect. For example, foster children and unadopted stepchildren are not considered children for intestate inheritance.
If you have concerns about who may or may not inherit your property if you die without a will, you should talk to an estate planning attorney. An estate planning attorney can address your concerns and help you with your estate planning if necessary.
Are You Ready to Start Your End-of-Life Planning?
If you live in Louisiana, it may be time for you to start your end-of-life planning. End-of-life planning means something different for everyone. For some people, it means making healthcare, legal, funeral, and legacy decisions. For others, it means gathering additional information and choosing to do nothing.
You are the only person who can decide what is right for you. Let Cake help you navigate the process with our online resources and planning platform. Are you ready to start today?