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Probate vs. Succession in Louisiana: What’s the Difference?
If you’ve searched for “probate” in Louisiana, you’ve probably noticed the term doesn’t quite fit. That’s because Louisiana doesn’t have probate in the way most other states do, it has succession, a distinct legal process rooted in the state’s civil law tradition. Understanding the difference matters, especially if you’re comparing information from out-of-state sources that don’t apply here.
Why Louisiana Doesn’t Use the Word “Probate”
Every U.S. state other than Louisiana operates under common law, where the term “probate” refers to the entire court process of validating a will and administering an estate; while the term “intestacy” refers to the process of distributing someone’s possessions to their heirs according to the law, when someone dies without a will. Louisiana is the only state that operates under a “mixed” civil law system, inherited from its French and Spanish legal history, and uses the term “succession” as general term for the process of transferring ownership of property from the deceased to their living heirs. When a person dies with a will, it is called a “testate succession” and when they die without a will it is called “intestate succession.” However, as a “mixed jurisdiction,” where a civil law system and common law system co-exist (namely, the state courts and federal courts), many common law terms and concepts are still used here, albeit often with slightly different definitions. The term “probate,” is one of these terms. While in other states it refers to the entire process of validating and administering a will, including passing ownership to heirs, in Louisiana it simply refers to the legal process to validate a will and make it legally enforceable, which occurs at the beginning of a testate succession. While the processes share confusingly similar terminology and definitions, Louisiana’s rules differ quite significantly from other states’, and include complicated concepts such as forced heirship and usufruct, which do not exist in most common law states.
How Louisiana Succession Differs From Probate Elsewhere
Louisiana succession law includes concepts that don’t exist, or work differently, in probate states, most notably forced heirship, which guarantees certain heirs a portion of the estate regardless of what a will says. Louisiana also distinguishes between community property and separate property in ways that affect how a surviving spouse inherits, a distinction most probate states don’t make in the same way.
Why the Terminology Confusion Matters
Families searching online for help with a Louisiana estate often use the word “probate” out of habit, especially if they’ve dealt with an estate in another state before, and end up reading generic information that doesn’t reflect Louisiana law, or seeing information about Louisiana’s very specific and technical “probate” process to validate a will, rather than the general rules of succession which they are looking for. Working with an attorney who practices specifically under Louisiana’s succession law, rather than general probate law, ensures the guidance you’re getting actually applies to your situation.
Whether you call it probate or succession, what matters most is getting guidance that’s actually accurate for Louisiana. Ciolino & Onstott offers free 15-minute consultations to help you navigate the process correctly from the start.
FAQs
Not exactly. Louisiana uses the term “succession” instead of “probate” because it operates under a civil law system rather than the common law system used by most other states. The processes are similar in purpose but differ in several important legal details. Confusingly, Louisiana uses the term “probate” to refer specifically to the technical process of validating a will at court, rather than the entire succession and administration process.
Largely, yes, both handle estate administration after death, but a Louisiana succession attorney specifically understands Louisiana’s unique laws, including concepts like forced heirship and community property distinctions that don’t exist or are significantly different in other states.
Generally, no. Information written for probate states often doesn’t reflect Louisiana succession law, particularly around forced heirship and community property, so it’s best to work with an attorney who specifically practices Louisiana succession law. In addition, other states tend to use trust-based planning to avoid the probate process, which can be very expensive and take a long time. Because Louisiana’s succession process is much easier and faster than probate in other states, it is usually more expensive and difficult to try to avoid the succession process than it is to simply go through it using a will.
Yes. Ciolino & Onstott handles “successions” under Louisiana law, which is the correct legal term for the state, even though many clients initially search using the word “probate.”
Louisiana’s legal system is based on civil law, inherited from French and Spanish legal traditions, unlike the common law system used in the other 49 states. This is why Louisiana uses “succession” rather than “probate” for the estate administration process.
Forced heirship guarantees certain heirs, typically minor or disabled children, a portion of an estate regardless of the will’s terms. It’s a distinctly Louisiana concept and generally does not exist in states that use traditional probate.
Generally speaking, Louisiana successions will generally resolve much more quickly than probate processes in other states. Many other states have mandatory probate waiting periods, notice requirements, and other procedural requirements which take many months or years to complete. Many other states are starting to address this issue by introducing streamlined probate processes similar to what exist in Louisiana, and specialized courts to deal with them, however Louisiana’s process is still much faster on average than any other state.
Ciolino & Onstott offers free 15-minute consultations to walk you through the Louisiana succession process for your specific situation, using terminology and law that actually applies in this state.