Intestate Succession - No Will at time of Death

By: www.LouisianaSuccessionLawyer.com

Question: Question: What will happen to my property if I die without a will in Louisiana, and who will inherit my property if there is no will?

Like many states, Louisiana has a set of default rules that will apply to determine what will happen to your property if you die and you did not prepare a Last Will and Testament prior to your death.  For some people, the default rules that kick in are sufficient to care out their wishes and as such there is no need for having a Last Will and Testament.

An understanding of these rules is however recommended to make sure that what you want to happen to property will be carried out under these default rules of Louisiana succession.

Under the default succession rules in Louisiana, community property and separate property are handled differently.  Generally, community property assets are things that were acquired during the marriage of the decedent and his or her spouse that jointly belong to the decedent and his or her spouse.  Those assets which are not community property are considered separate property assets of the decedent.

Many people do not know that the default rules do not favor a surviving spouse.  If you die without a will, your separate property will first go to your children, and if you do not have children, your separate property will go to your parents and if they are deceased it will go to your brothers and sisters.  It is only in the event that you do not children, or parents, or siblings that your spouse will acquire your separate property from your succession.  If you wish to avoid this situation, proper planning is necessary.

Community property is handled somewhat differently under the default rules.  Again however, your surviving spouse is not favored.  The default rule provides that the ownership of your community property will go to your children who will then co-own the community property with the surviving spouse.  It is only if you have no children that your spouse will receive your community property from your succession.

Although your children inherit your community property, the default rules do grant your surviving spouse the right to use your community property until his or her death or until remarriage, whichever occurs first.  This right to use the community property is known as a spousal usufruct in Louisiana.

This is just a brief explanation of the default rules that apply in Louisiana when someone dies “intestate” meaning without a leaving a will.  If these default rules do not accomplish what you want to happen to your property after you are gone, advanced planning and the preparation of a will is needed.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Transferring Title to a Vehicle Without Succession

By: www.LouisianaSuccessionLawyer.com

Question: A family member died and only owned a car. Do I have to open a succession in order to transfer the title of the vehicle to my name so I can sell it?

Louisiana has a non-judicial procedure for transferring the title of a vehicle in the event of the owner’s death that does not require any court proceedings to be initiated. An Affidavit of Heirship can be obtained from the Louisiana Department of Public Safety and Corrections (Office of Motor Vehicles) that can be completed to transfer the title to the vehicle without the need for opening a succession through a court proceeding. 
In addition to the Affidavit of Heirship, the DMV will also require a copy of the Last Will and Testament and the certificate of title. A copy of the Affidavit of Heirship can be downloaded here.
If there is only one surviving heir and he/she wishes to title the vehicle in his/her name, only the Affidavit of Heirship and supporting documents needs to be filed. 

If one of the heirs is a surviving spouse and he/she wishes to transfer the vehicle to a new owner, the Affidavit of Heirship must be completed by the surviving spouse as well as all other heirs, but only the surviving spouse is required to sign the a notarized bill of sale or act of donation.  If there is no surviving spouse and the sale or donation is to a new owner, a bill of sale or act of donation must be signed by all heirs.

This procedure is useful when the only property owned by the decedent was a vehicle.  It also however can be used as part of a regular succession in order to transfer the vehicle into a designated person’s name for purposes of maintaining insurance on the vehicle while the succession is ongoing.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Out of State Wills

By: www.LouisianaSuccessionLawyer.com

 Question: My parent died in Louisiana but his Will was prepared in another state. Can I open succession with an out of state will in Louisiana, or will the Louisiana Court recognize the Last Will and Testament drafted in the other state?

Under Louisiana law, a Louisiana court will recognize a will that is executed out-of-state if the will was prepared in an manner and form that would make it valid under the law of the state where it was signed, or under the law of the state where the person who made the will was domiciled at the time he/she signed the will.

For example, let’s say that your parent owns a home in Louisiana.  Later in life, due to health reasons, your parent moves to Texas to live with your sister who can provide daily care.  During the time he/she is living with your sister in Texas, a Texas attorney assists your parent in drafting a will that complies with the form requirements for wills in Texas, but differs from the format that Louisiana requires.  After your parent passes away, a succession is necessary in Louisiana to deal with the family home that your parent owned here.
Although the will is not in the format that Louisiana law requires, a Louisiana Court will nevertheless recognize and probate the will since it was prepared in accordance with Texas law.

Sometimes however, rather that probating the will in Louisiana, a person’s succession is actually opened in another state and the will is admitted to probate outside of Louisiana. 

If there is a need to also open a succession in Louisiana to be dealt with assets located in Louisiana, Louisiana law permits the family to present a copy of the probated will from the other state and the will shall have the same force and effect as the original probate of a domestic will.    

The uniform wills and probate law is found at Louisiana Revised Statute 9:2401 and 9:2421 et seq. respectively.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Ancillary Succession

By:  www.LouisianaSuccessionLawyer.com

Question: We have opened a succession for my dad in Mississippi that is pending. There is however real estate that he owned in Louisiana at the time of his death. The lawyer handling the succession said the property in Louisiana can’t be handled in the Mississippi succession and we need to get a lawyer in Louisiana to handle it. What do we need to do?

Yes, a succession in Louisiana will be needed in order to transfer the Louisiana real estate from your dad to his heirs.  The procedure is known as an “ancillary” succession proceeding.

Louisiana law provides that when a non-resident dies and owned property in Louisiana, that a succession can be opened here in Louisiana to transfer ownership of the property.  In order for the succession representative in the Mississippi succession proceeding to act with respect to the property however, it will be necessary for him or her to qualify to do so in the Louisiana court where the ancillary succession will be filed.
If your father had a Last Will and Testament that has already been probated in the Mississippi succession, Louisiana law permits you to present a copy of the probated will and the Louisiana court will allow the will to have the same force and effect as the original probate of a domestic will.    

Ancillary succession proceedings are usually pretty simple to conduct and can be opened and completed sometimes within as little as a few days if necessary.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Marital Portion aka Widower's Share

By:  www.LouisianaSuccessionLawyer.com

Question: My husband died and the house we have lived in for the last 20 years is only in his name, and the bank accounts were all in his name as well. My in-laws want me out the house and want the money out of the bank accounts. I will be left with nothing….what do I do?

Unfortunately, we run into this situation all too often.  It comes up in situation of a second marriage or when people get married later in life.  What happens is that the newlyweds move into a house that was purchased and owned prior to the marriage by the other spouse.  They live in the house throughout their marriage, treating it as their family home.
Unless proper estate planning is done, the spouse who moved in can find themselves kicked out of the family home by the in-laws or step-children.   This is due to the fact under Louisiana law, a surviving spouse does not inherit the separate property of the spouse who passes away. Unfortunately, many couples do not know this, and without planning can result in the surviving spouse facing becoming homeless and penniless as the result of the death of their husband or wife.

In order to avoid this unfortunate outcome, Louisiana law recognizes what is known as a “marital portion.” The law provides that when a spouse dies rich in comparison with the surviving spouse, that the surviving spouse is entitled to claim a “marital portion” from the succession of the deceased spouse.  See Article 2432 of the Louisiana Code of Civil Procedure.  The purpose of this law is to prevent a surviving spouse from being left in poverty after having becoming accustomed to the wealth of the spouse who passed away.
In order for a surviving spouse to qualify for the marital portion, the value of the assets of the deceased spouse is compared to that of the surviving spouse.

Although there is not concrete test to qualify, as a rule of thumb the surviving spouse will qualify for the marital portion if his or her assets are worth 20% or less of the value of the deceased spouse’s assets.  As a simple example, assume that a husband dies and the value of his property at the time of his death is $100,000.00.  If the surviving wife’s assets are worth $20,000.00 or less, she would likely qualify to receive a portion of her husband’s assets from his succession.

The amount of the martial portion is set one-fourth (1/4) of the succession in ownership if the deceased died without children, or one-fourth (1/4) in usufruct for life if the deceased spouse is survived by three or fewer children, or a child’s share in usufruct for life if the deceased spouse is survived by more than three children.

The martial portion is capped at one million ($1,000,000.00) dollars. The amount of the martial portion may also be reduced by the amount of any property left to the surviving spouse in the deceased spouse’s will, and also reduced by the amount of any payments the surviving spouse receives as the result of the death of the spouse which includes life insurance proceeds, social security payments, and pension benefits that come about because of the death of the spouse.

The marital portion is an important right in favor of the surviving spouse that must be considered and asserted in the succession when possible to avoid a surviving spouse falling into poverty.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Estate Real Estate

By:  www.LouisianaSuccessionLawyer.com

 Question: I need to sell real estate that has been in my family for generations. The title company says I need to open succession for my parents in order to be able to sell it. What does this mean and how long will it take?

We get this question often. The typical situation that is presented is that the client has a home or real estate that has been in the family and has simply been passed down. Their grandparents may have originally bought the property, and after they passed away the client’s parents began using the house. The client is now taking care of the property because their parents have now passed away.

Once we start looking into the history of the property, we discover that the property has simply been “passed down” from generation to generation and no succession proceeding has ever been opened for either the grandparents or the parents of the client.  Now that that there is a potential sale of the house to a third party, the title to the property has to be cleaned up so the sale can take place.

Basically, what needs to happen is the record ownership of the property needs to be transferred from the grandparents to the client.  This means that successions need to be opened for the deceased family members. 
A “succession” is simply the legal process by which the ownership of property is transferred from one generation to the next.

Depending on the circumstances, many times our office can complete the necessary succession proceedings within just a few days if the family members are all cooperative.  This allows the client to maintain their closing date for the sale of the house. 

Of course, it is always best to take care of any successions that are needed well in advance of putting the property on the market to sell to a third party because sometimes the legal process can take time due to complications or problems that might come up relative to the estate of a parent or grandparent.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Deceased Spouse’s Debt

By:  www.LouisianaSuccessionLawyer.com

Question: Am I responsible for my deceased wife’s credit card bills? The cards were only in her name but the credit card companies keep calling me for payment. Do I have to pay the bills in her name?

This issue sometimes arises after the death of a spouse, when the surviving spouse starts going through the mail and discovers for the first time that their deceased spouse had credit cards or other debts that they did not know about. Many times the amounts owed on these bills have high balances which the surviving spouse simply cannot afford to pay. The surviving spouse quickly becomes concerned whether or not he or she is liable for the debt the deceased spouse left behind.

If the credit card or debt is something that was solely in the name of your deceased spouse and you never signed anything agreeing to be liable for it, as a general rule you will not be personally liable for the bill. 
This is true of credit cards, personal loans, car notes, business debts, mobile phone contracts, and other bills. Such items are debts of your deceased spouse and become liabilities of his/her estate and the creditor can seek payment through the succession proceeding.

There is one caveat however that you must be aware of.  Although the creditor cannot pursue you personally for payment of the bill, the creditor is however permitted to pursue and collect against any community assets you owned with your deceased spouse. 

For instance, even though you are not personally liable, the creditor may nevertheless be able to garnish a bank account that was jointly owned between you and your deceased spouse.

The rule of law in Louisiana permits creditors to pursue community property to satisfy both separate and community obligations.  As such, even though you are not personally liable, it may not be prudent to ignore the bill collectors of your deceased spouse if it puts your community property at risk for being taken.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com

Bank Account & Wages

By:  www.LouisianaSuccessionLawyer.com

 Question: My spouse just passed away. I need to access money from the bank accounts to pay bills and funeral expenses. Can I access the accounts now, or do I have to wait for a succession to be finished in order to get access to the funds?

Fortunately, Louisiana law provides a few quick, non-judicial, ways to access funds in bank accounts after the death of a parent or spouse. These procedures are useful in order to obtain immediate access to funds held on deposit in the event money is needed to pay bills or funeral expenses immediately following the death of a loved one.

Up to $5,000.00 can be withdrawn from a decedent’s bank accounts by the surviving spouse and heirs if the person died without a Last Will and Testament.  In order to be permitted to make the withdrawal, the spouse and the heirs must provide the bank with an affidavit establishing jurisdiction and relationship, and stating that the decedent left no will.  Most banks have a form affidavit that they make available at the bank branch for completion of this process.  The law allowing this procedure is found at Louisiana Revised Statute 6:315.1.

In addition to the above, there is also a second procedure that is available only to a surviving spouse that allows the surviving spouse to withdraw up to $10,000.00 from an account in the name of the deceased spouse or an account held jointly in the name of spouses.  In order to be permitted to make such withdrawal, the surviving spouse must provide the bank an affidavit stating that total funds withdrawn from all bank accounts under this procedure has not exceeded $10,000.00. This procedure can be used even when the person dies with a Last Will and Testament. The law allowing this procedure is found at Louisiana Revised Statute 9:1513.  Again, check with your bank and they typically can provide you with a copy of the necessary affidavit to complete this procedure.

As a related issue, the surviving spouse and children can also directly receive payment of up to $6,000.00 in wages from a deceased’s employer after death. In order to receive such payment, an affidavit must be provided to the employer stating the name, address, date and place of death of the deceased employee, the relationship of the person requesting payment to said employee, the name and address of the surviving spouse, or children, if any, of said deceased employee and such other information as the employer may require. The law allowing this procedure is found at Louisiana Revised Statute 9:1515.

The Scott Law Office
Brad P. Scott - Attorney
www.LouisianaSuccessionAttorney.com