last update 1-01-2003
Louisiana Estate Administration
The estate of a deceased person includes the property,
rights, and obligations that a person leaves after his death,
whether the property exceeds the charges or the charges
exceed the property, or whether he has only left charges
without any property. The estate includes not only the rights
and obligations of the deceased as they exist at the time of
death, but all that has accrued thereto since death, and the
new charges to which it becomes subject. Louisiana law
permits reference to the term "estate" of the deceased as
defined but grants no separate legal existence to such an
The more common term in Louisiana parlance is that
of succession. Succession is the transmission of the estate of
the deceased to his successors. The successors thus have the
right to take possession of the estate of the deceased after
complying with applicable law. The word succession means
the process by which heirs and legatees succeed to the
property of the deceased. Since the property is transmitted
immediately upon the death to the proper successors, it
follows that they have a right to possession after complying
with appropriate procedural requirements. Just like the term
estate, a succession is not a separate legal entity.
Source: La Civil Code Art 871-872
Probate is the term normally used to describe certain
procedures when there is a will. The term is derived from
the Latin word meaning proof and is thus used at the time
that the will is to be proven or probated. The will is
located, processed and probated, or put into effect. Many
people refer to the process of judicial determination of the
distribution of a deceased estate as a probate process.
However, since the proper use of the term probate refers to
those situations in which a will exists, it would be an
incorrect term unless a will was involved. Notwithstanding
that fact, the term probate is generally used to refer to the
legal proceeding whereby the decedent's property is
distributed to his descendants.
Regardless of whether the decedent left a will or not,
the proper court for opening a succession is the state district
court in the parish where the deceased was domiciled at the
time of his death. If he was not domiciled in Louisiana at the
time of his death, then the succession could be opened in the
parish in which he owned immovable property or, if none,
then in the parish where he owned movable property. If he
were living in a nursing home that was in a different parish
than his real home or domicile, the parish of the real home
or domicile would be the proper parish.
The first step in the succession procedure is to present
to the proper court an affidavit verifying the death and stating
the proper domicile of the decedent. Any existing will
should also be presented to the court with a request that the
will be filed in the record and that the last will be probated.
Proof of the validity of any witnesses' signatures and the
signature of the notary to the will must be presented with
either live testimony or by affidavit.
If a party objects to the probate of a will, he has a
right to file a petition objecting to it. The opposition to the
probate will require a hearing in open court and the
proponent of the will bears the burden of proving the
authenticity of the testaments and its compliance with all of
the formal requirements of law.
An administration of a succession is normally
required only when there are sizable properties involved or
when there are disputes among the heirs. The purpose of an
administration is to continue the efficient operation of the
decedent's estate until the matter can be resolved.
The heirs of an intestate succession (without a will)
can be recognized by the court and sent into possession of the
decedent's property without an administration when all of the
heirs are competent and they accept the succession
unconditionally, and the succession is relatively free of debt.
A succession is considered to be relatively free of debt when
its' only debts are succession charges, mortgages not in
arrears and debts which are small in comparison with the
assets of the succession.
For a testate succession (with a will), the court may
send the heirs and legatees into possession of the decedent's
property without an administration of the succession when all
of the legatees are either competent or are acting through
their legal representatives, all competent legatees accept the
succession unconditionally and none of the creditors of the
succession has demanded an administration.
Source: La Code of Civil Procedure Art 2851 et seq
The succession representative is the person that is
placed in charge of the estate when there is an administration.
This representative may have the title of executor if he was
so named in a will or administrator if he was not named in
a will but appointed by the court.
Unless the person named in the testament as executor
is disqualified on any of the grounds set forth below, the
court will order him confirmed as testamentary executor and
direct the issuance of letters testamentary confirming that
fact. Letters testamentary is just a term to describe the order
appointing the executor. In order to qualify, the person must
Age 18 or older
Not interdicted or mentally incompetent
Not a convicted felon
A non-resident who has appointed an agent
A corporation authorized to perform this duty
A person who is fit due to good moral character
When no qualified person has petitioned for
appointment as administrator of a succession within three
months of the death of the deceased, the court may appoint
an attorney at law as administrator and set his compensation.
The attorney would be required to post security. Otherwise,
all of the provisions relating to the administrator of a
succession would apply to the attorney.
The security required by an administrator is set by
law to be 1¬ times the value of the property of the estate.
This means that the administrator must produce a bond,
secured by his own real estate or by an insurance company,
that guarantees his performance. A person who was named
by the testator as executor is generally not required to furnish
security. However, the will can require security and forced
heirs, a surviving spouse in community or creditors can
require that the executor post security.
The listing or inventory of a decedent's property is
created by a notary appointed by the court in the presence of
at least two competent witnesses, assisted by two competent
appraisers appointed and sworn by the notary. Upon
completion, a record of the inventory is to be made and filed
with the court. This can be a cumbersome process.
In lieu of the above formal inventory process, what is
normally done in successions, and is allowed by law, is the
filing of a sworn detailed descriptive list of property. This
list would list all of the property of the deceased including
the legal description of immovables, the account numbers of
bank accounts, stock certificate numbers for stock, vehicle
identification numbers for vehicles, etc. The list is normally
prepared by the attorney, adopted and sworn to by two
witnesses who are familiar with the property.
The court may remove any succession representative
who is or has become disqualified, has become incapable of
discharging the duties, has mismanaged the estate, has failed
to perform any duty that he should have performed, or has
ceased to be a domiciliary of Louisiana without appointing an
agent. However, the removal of a succession representative
from his office does not invalidate any actions that he had
taken prior to his removal.
Source La Code of Civil Procedure Art 3081 et seq
Powers of Succession Representative
The succession representative is a fiduciary to the
succession and has the duty of collecting, preserving and
managing the property of the succession. He is to act at all
times as a prudent administrator and is personally responsible
for all damages resulting from his failure to act. He has the
duty to close the succession as soon as is advisable.
A succession representative cannot, in his own
personal capacity or as representative of any other person,
make any contracts with the succession of which he is the
representative. He cannot acquire any property of the
succession or interest therein, personally or by means of third
persons. All contracts so prohibited are voidable and the
succession representative will be liable to the succession for
all damages resulting from his dealings.
The above limitation of not contracting with the
succession is not applicable to a succession representative
who is a surviving spouse of the deceased, a partner of the
deceased with respect to the assets and business of the
partnership, a co-owner with the deceased as it relates to the
co-owned property, an heir or legatee of the deceased or a
creditor with respect to the property secured by a mortgage
The succession representative has all of the procedural
rights of any other party who is a litigant. As such, he can
sue and be sued in his capacity as succession representative.
The representative is deemed to have possession of all
of the property of the succession just as did the decedent. As
such, he has the right to enforce all obligations of the
succession in its favor.
When the succession representative receives money,
he is to deposit the funds in a proper bank account without
unnecessary delay. He is to only withdraw and disburse the
funds as will be discussed later. His failure to promptly
deposit the funds of the succession could be a cause to have
him removed from office and to assess a charge against him,
personally, and his surety, of an amount of 20% per annum
with such funds being paid to the succession.
If there are idle funds in the succession, the
representative may invest those funds but only after obtaining
the approval of the court. He is also authorized to continue
the operations of a going business but only after court
Source La Code of Civil Procedure Art 3191 et seq
Claims Against the Succession
When a party has a claim against the decedent or
against the succession, he should present that claim to the
succession representative. If the representative does not
acknowledge the debt within 30 days, it is considered to be
denied. In that case, the creditor would be advised to make
a formal submission of the claim in the proper format to stop
the running of prescription (statute of limitations) so that he
does not lose his claim due to the lapse of time.
In order for a creditor to sue a succession
representative for a debt, the debt must first be presented to
the representative and rejected by him, either directly or by
not acting on the matter for 30 days.
If a creditor is successful and obtains a judgment
against the succession representative, he cannot use that
judgment to seize any property of the succession. However,
if there were a regular mortgage on property of the deceased,
that mortgage could be a basis for seizing the mortgaged
The succession representative may sell succession
property but only after following certain rules and obtaining
court approval. The approval process begins with the filing
of a petition in the succession record providing all of the
pertinent facts about the proposed sale. A notice of the filing
of the application to sell property is to be published in the
proper newspaper of the parish one time when movable
property is involved and at least 2 times (3 weeks apart)
when immovable property is involved. The notice must state
that court approval can be obtained within 7 days of the last
date on which the notice is published unless there is an
objection filed in the record. An opposition to a private sale
may only be filed by an heir, legatee or creditor.
The private sales of bonds or stock at prevailing
market rates also require court approval but there is not a
requirement for advertising. Court approval can be obtained
simultaneously with the filing of the petition requesting such
The succession representative may pay the bills and
debts of the succession but only after filing a petition to do
so, publishing a notice of that fact and obtaining court
approval in a timely fashion. The payment of urgent debts
or expenses of operating a going business could be exceptions
to this rule.
Interested parties can file a notice in the succession
proceedings to be notified of the filing of any petition to pay
bills and expenses. An opposition to the payment of bills
and expenses may be filed after the notice is mailed or
published. However, since approval and payment can be
made seven days after such mailing or publication, the
objection must be timely filed. If objection is filed, then the
court will set the matter for a hearing and both sides can
present their positions.
The succession representative is to file an annual
accounting with the court. The accounting is to show the
money and other property received by and in the possession
of the representative at the beginning of the period, all
receipts of funds or property and expenditures of funds
during the year and the property on hand at the end of the
year. Failure to file an annual report could be grounds for
removal of the representative.
Copies of the annual accounting are to be provided to
the heirs and legatees along with a notice that the accounting
can be approved by the court within ten days thereof. If no
opposition is filed, the court can approve it thereafter and
that approval is prima facie proof that it is correct.
The fee or compensation to be paid for an executor
named in the will is the amount that is specified in the will.
The fee for an administrator is the agreed upon fee at the date
of his appointment. In the absence of a provision in the will
or an agreement, the succession representative's fee is 2 «%
of the amount of the inventory in the succession. This is not
an amount payable annually but rather is a flat fee. If
circumstances require a different fee, it can be modified by
the court. If there are multiple representatives, they are to
share in the fee and should not each expect to collect the
maximum amount. If the person who is the succession
representative is also the attorney for the succession, he
cannot claim fees in both capacities but only a reasonable fee
for the work that he does. Any such compensation still
requires court approval prior to payment.
Final Judgment of Possession
A succession is concluded at the time the judge
executes a final judgment of possession. This judgment
transfers the property of the decedent to the heirs and
legatees and will not be signed until all of the affairs of the
succession have been wrapped up, expenses and charges of
the succession have been paid, inheritance taxes paid, and
there is nothing further for the succession representative to
do. Under special condition, distributions can be approved by
the court at earlier times.
The judgment of possession will list the various heirs
and legatees who are receiving property and list, in detail,
the property that they are to receive. When the judgment of
possession is recorded in the conveyance records in the clerk
of court's office, the listed property is thereby officially
recorded in the name of the heirs and legatees.
Since the succession representative is still in charge of
the property up to the disposition of it in the judgment of
possession, he must then file his final accounting showing the
activity during the last year or part of the year since the last
annual accounting. The representative can petition for
approval by the court of his discharge and if there is no
opposition, he will be discharged.
Sometimes property of the decedent is found after a
succession has been concluded. In those cases, the
succession can be reopened to deal with that property. After
the state inheritance taxes have been paid, if applicable, the
judge will sign an amended or supplemental judgment
transferring the newly found property to the proper heirs or
Source La Code of Civil Procedure Art 3241 et seq
Ancillary Probate Procedure
The property laws of the various states control the
ownership of immovable property located within their
boundaries and the disposition of that property upon the death
of the owner. Thus, if a decedent is a domiciliary of one
state but owns property in another state, a probate proceeding
will need to be instituted in that second state to deal with the
transfer of the property in that second state. That proceeding
is not the primary probate proceeding but is a minor or
ancillary filing to handle only a specific property. As such,
the filing in such second state is referred to as an ancillary
For matters involving property located within the state
of Louisiana, the petition for an ancillary probate proceeding
should be filed in the parish where the immovable property
is located. Upon opening the succession, a succession
representative appointed by a court outside of Louisiana may
act with respect to property located in Louisiana but only
after qualifying in this state.
If the decedent died with a will and that will was
executed outside of Louisiana in the manner prescribed by
the law of the place of its execution, that will has the full
force and effect of law in Louisiana just as if it had been
executed according to Louisiana law.
Source La Code of Civil Procedure Art 3401 et seq
======================== WARNING =======================
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed. Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a
attorney to discuss the specific facts of your case
and the law of your state.
If you live in Louisiana and want to talk about your situation, please
call me at:
Marvin E. Owen
3036 Brakley Drive
Baton Rouge, La 70816
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