last update 12-5-02

Louisiana's Independent Administration Law

In the past, if a succession was under administration, the Executor could make some decisions but such actions were normally subject to advertising and obtaining court approval. For instance, for an Executor to sell a tract of land owned by a decedent, the Executor would have to obtain an offer of purchase, then advertise that he would be requesting approval from the Court to sell the property, that advertising would have to be done twice and at least 20 days apart, thereafter, he would have to wait a minimum of 7 days prior to requesting Court approval. Considering Court delays, weekends and holidays, the total time delay could be as much as 45 days.

Louisiana has now adopted a new Independent Administration law that cuts through all of the red tape. It allows the Executor to sell the property immediately without advertising and without obtaining Court approval. Basically, the independent executor has all of the rights, powers, authority and privileges of other succession representatives but without the necessity of obtaining court approval to exercise them. This should be a time-saver and a cost-saver for those successions that require administration.

New wills can incorporate the Independent Administration law and existing wills can be easily modified to take advantage of it. Even existing successions can adopt the provisions even though the person is already deceased.

Here are the provisions of the new law.

Act 974 of the 2001 Legislative Session created new articles in the La Code of Civil Procedure 3396 to 3396.20 and 5251(14) relative to probate procedures to provide for independent administration of succsessions.

The concept is very simply and application of the law to new and existing wills and/or probate matters is simple.

Independent administration of a succession simply means that the succession can be administered under this new law. The terms administrator of a succession and executor of a succession are interchangeable and mean the succession representative of the succession.

To qualify for the provisions of independent administration, the will only needs to include a simple statement that the succession representative may act as an independent administrator or independent executor. That simple statement is all that is needed to kick in the provisions of the new law.

If a person dies without having stated that his succession can be independently administered, then all of the general or universal legatees may agree to have an independent administration and in the application for filing for probate of the decedent's testament collectively designate the person named in the will to serve as independent executor. The court is then required to enter an order granting independent administration of the succession.

If the decedent died without naming an executor or dies without a will, then all of the heirs/legatees may agree on having an independent administration and collectively designate a qualified person to serve.

If a usufruct is involved in the succession, both the usufructuary and the real owners are required to agree on the use of independent administration.

Some wills now provide that if a spouse does not survive the decedent for a period of time then it is deemed that the person pre-deceased the decedent. This is to prevent doubling up of estates and taxes when it can be avoided. In this case, the parties do not have to wait for the period of time to pass to elect independent administration but an election made during the period of survivorship will be valid.

A person can waive the requirements for an executor to have a bond. In the case of independent administration, the law provides that the executor does not have to have a bond unless the heirs/legatees require it.

An independent administrator is not required to file interim accountings. However, he may be required to do so if an heir/legatee demands it. He is required to file a final accounting unless the heirs/legatees waive that requirement.

========================  WARNING  =======================
                      AND DISCLAIMER
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
    ph 225-292-0099
    toll-free 1-888-292-0116

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