What is a Succession?
Apr 15, 2021 by Ciolino & Onstott
Simply put, “Louisiana succession" is the process of transferring a deceased person’s debts and assets to that person’s heirs, after they die. Other states call this the “probate” process. Of course, if it were that simple, this would be an extremely short blog post. The reality is that Louisiana’s succession laws are complex, unique, and fraught with risks that are difficult to navigate, especially if you are in the process of planning your own estate, or dealing with the loss of a loved one.
Ciolino & Onstott is an estate planning and succession law firm located in New Orleans, Louisiana. One of our goals is to educate our clients on the Louisiana succession laws so that they can better understand their own cases and make more informed decisions. Through this series of blog posts, we aim to explain some of the basic concepts of successions and the attorney’s role in helping you work through it.
Our first post is about what makes Louisiana different as well as answers one important question: what is succession? We will explore some of the history of the state, define succession from the basic legal standpoint, and then discuss common questions regarding “do-it-yourself” successions in Louisiana.
If you have questions about successions in Louisiana after reading this blog post, we're here to help. As Louisiana succession attorneys, Ciolino & Onstott provide free consultations to help you understand the process as it relates to your unique situation so that you can make an educated decision. Schedule your free consultation now!
Why is Louisiana Succession Different from Probate?
You have probably heard that Louisiana laws are a little bit different than those in other states, because of the “Napoleonic Code.” This is true! Well… it is kind of true. In fact, Louisiana is what is called a “mixed jurisdiction,” which means that it uses multiple legal systems, namely: common law (the legal system used by the United States federal government and all other U.S. States), and civil law (a code-based legal system used in many other countries such as France, Spain, Germany, Italy, and others.)
Louisiana’s legal system is not based on the Napoleonic Code, though it does have roots in France (and Spain, Germany, and even ancient Rome). The Napoleonic Code, however, was not enacted in France until 1804, a year after the Louisiana Purchase which separated it from French rule. Louisiana’s state law, like France, uses a code based system called “civil law” wherein the laws of the state are contained in a Civil Code, which cannot be amended by courts, but only by legislative action. This differs from the “common law” system that exists throughout the rest of the United States, and in the federal government, where the court can amend existing laws, and even create new laws, through their rulings. Louisiana uses civil law for state matters, such as contracts, property, and successions; and common law when dealing with federal laws such as admiralty, laws passed by the United States Congress, enforcement of international treaties, and the United States Constitution.
The differences between Louisiana law and laws in other states are sometimes superficial, like using the term “servitude” rather than “right of way;” and other times they are more significant, like Louisiana’s usage of “forced heirship” laws, which require a person to reserve at least a certain amount to heirs who are under 24 years old, or disabled; and which do not exist at all in other places. We will explore some of these differences in more detail in a future post.
In sum, Louisiana is a mixed jurisdiction that uses civil law and common law; and due to this complex legal system, Louisiana has different terminology for many concepts, and entirely unique laws and processes that do not exist anywhere else in the country. It is always important to hire an attorney who is licensed in and familiar with the laws of the particular state that you are in, but this is especially true in Louisiana.
What is Succession?
Louisiana Civil Code article 871 defines Succession in Louisiana as “the transmission of the estate of the deceased to [their] successors.”
Basically, this means transferring ownership of someone’s stuff to other people after they die. As mentioned above, most states refer to this process as “probate”, however, in Louisiana, “probate” specifically only refers to the process of proving the will, which will be discussed in another post.
Article 871 also states “The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law.” This means that, although you may technically own certain property after a family member dies, you must comply with certain legal procedures in order to take possession of it. In other words, if someone leaves you a house in their will, you may own it, but you cannot legally move into the house, sell it, or take other acts of ownership until you complete the legal process at court. Importantly, this may mean that you are required to pay taxes on property that you are not allowed to possess or use until the succession process is complete.
Taken together, “succession” means the process of transferring a person’s things to another after they die, including special legal procedures necessary for them to take possession of those things.
What Steps are There in the Louisiana Succession Process?
The answer to this depends on whether or not the deceased person (called the “decedent”) had a will.
If someone dies with a valid will, this is called “testate succession” and their things are transferred according to their wishes, as contained in the will. If they die without a will, or if their will is invalid, then it is called Louisiana intestate successionand their things will be distributed according to Louisiana’s complex “intestacy” laws.
In either event, one of the decedent’s heirs (anyone who stands to inherit something from them), or one of the decedent’s creditors, will petition the court to “open” the succession. In a testate succession, the petitioner will have to present and “probate” (or prove the validity of) the will.
If the succession has debts or some other special circumstances, the court will then appoint an “administrator” to pay off any debts, take the decedent’s place in any lawsuits, or manage other special circumstances as may be necessary. In a testate succession, the will may have a provision selecting a person to do this for them, in which case they are called the “executor.”
In Louisiana intestate successions, or when a will does not name an executor, the court will appoint a qualified person who applies for the position, who is usually an heir, another family member, or a trusted friend. Once the administrator or executor completes those tasks, they will distribute the remaining property in the estate to the heirs and “close” the succession.
Again, this is a simplified explanation and does not take into account special issues that you or your family may be facing, or any of the many Louisiana succession laws that may apply, including what happens if there are minor children, lawsuits, or business interests associated with the estate.
What About Do It Yourself Succession in Louisiana?
You are not required to hire a Louisiana succession attorney to open a succession in Louisiana. The courts in most parishes provide forms to open successions and will give some guidance on the proper procedure for doing so. They will not provide any legal advice, nor will they point out if your pleadings may affect you or your family in any negative way. As you can see, Louisiana succession laws are complicated, and your succession may involve important legal issues that you do not realize. If your succession is truly simple, this may be possible for you; however, we highly recommend consulting with a Louisiana succession attorney before you attempt any sort of self-help. If there is any dispute about the succession whatsoever, then you should not attempt to open the succession without the assistance of an attorney.
That said, a properly designed and executed estate plan can make it much easier and less risky for the heirs to handle your succession with minimal attorney involvement, or without an attorney at all. Ciolino & Onstott provides plans for estates that may give your family the option to save on attorney fees by simplifying your estate, and therefore the succession process. A properly designed plan can also reduce the risk of a costly dispute. However, there is never any guarantee that you will be protected from succession disputes; and if a dispute arises, you may need the guidance and assistance of an experienced attorney.
Free Consultation: Louisiana Succession Attorney
Whether you are looking to make the succession process easier on your loved ones by establishing a thorough estate plan, or if you have a legal interest in succession, a Louisiana succession attorney can help. Ciolino & Onstott have the experience, knowledge, and dedication you need to simplify the process while guiding you through. To schedule your free consultation now, click here.
To learn more about how these laws may impact your estate and family, schedule your free consultation with Ciolino & Onstott now, or stay tuned for our future blog posts where we will discuss exactly what an "estate" is, and other interesting Succession and Estate Planning topics!