4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

USUFRUCT: Usufruct is a real right of limited duration on the property of another. The features of the right vary with the nature of the things subjects to it as consumables or nonconsumables. Civil Code ("C.C.") Art. 535.

DATIVE TESTAMENTARY EXECUTOR: If no executor has been named in the testament, or if the one named is dead, disqualified, or declines the trust, on its own motion or on motion of any interested party, the court shall appoint a dative testamentary executor, in the manner provided for the appointment of an administrator of an intestate succession. Code of Civil Procedure ("C.C.P.") Art. 3083.

· Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

While there does not appear to be a time limit for judicially opening a succession, no testament shall be admitted to probate unless a petition therefor has been filed in a court of competent jurisdiction within five years after the judicial opening of the succession of the deceased. C.C.P. 2893; Louisiana Statutes Annotated-Revised Statutes "LSA-R.S."9:5643.

An action for the recognition of a right of inheritance and recovery of a whole or a part of a succession is subject to a liberative prescription of thirty years from the day of the opening of the succession (date of death). C.C. Art. 3502.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Louisiana is a community property state, so property is either separate or community. In an intestate succession, descendants succeed to the property of their ascendants. They take in equal portions and by heads if they are in the same degree. They take by roots if all or some of them succeed by representation. (C.C. Art. 888).

If the deceased leaves no descendants, his surviving spouse succeeds to his share of the community property. (C.C. Art. 889).

C.C. Art. 891-895 set out the rights in separate property of the surviving spouse, descendants, ascendants and collateral heirs.

C.C. Art. 894 provides that if the deceased leaves neither descendants, nor parents, nor brothers, sisters, or descendants from them, his spouse not judicially separated from him shall succeed to his separate property to the exclusion of other ascendants and other collaterals.

In addition C.C. Art. 890 provides that if the deceased spouse is survived by descendants and shall not have disposed by testament of his share in the community property, the surviving spouse shall have a legal usufruct over so much of that share as may be inherited by the descendants. This usufruct terminates at death, or when the surviving spouse contracts another marriage, unless confirmed by testament for life or for a shorter period.

Also, the deceased may by testament grant a usufruct for life or for a shorter period to the surviving spouse over all or part of his separate property.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

No.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Two statutory situations exist in which derogation may be had from the testament: the Marital Portion, and Forced Heirship.

With regard to the marital portion, when a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim the marital portion from the succession of the deceased spouse (C.C. Art. 2432). The marital portion is one-forth of the succession in ownership if the deceased died without children, the same fraction in usufruct for life if he is survived by three or fewer children, and a child's share in such usufruct if he is survived by more than three children. In no event, however, shall the amount of the marital portion exceed one million dollars. (C.C. Art. 2434).

A detailed discussion of forced heirship is beyond the scope of these materials. In summary, however, with regard to the succession of all persons who die after December 31, 1995, forced heirs are descendants of the first degree twenty-three years of age or younger, or descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their person or administering their estates. For purposes of forced heirship, representation of a descendant of the first degree who predeceased the donor is permitted if that descendant would not have attained the age of twenty-three at the donor's death. (C.C. Art. 1493).

Donations intervivos and mortis causa cannot exceed three-fourths of the property of the donor if he leaves, at his death, one forced heir, and one-half if he leaves, at his death, two or more forced heirs. Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent's estate to which the forced heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor. (C.C. Art. 1495).

With regard to the successions of persons who died on or before December 31, 1995, donations intervivos or mortis causa cannot exceed three fourths of the property of the disposer, if he leaves, at his death, one child; and one-half, if he leaves two or more children. Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent (old C.C. Art. 1493). LSA-R.S. 9:2501 provides rules with regard to determining the testator's intent under certain circumstances where he died after December 31, 1995, leaving a testament executed prior to January 1, 1996.

This area is complex and extreme care should be employed by the examiner.

Summarize the steps required for a testate administration. Provide statutory citations.

The basic elements of both testate and intestate successions are similar. Jurisdiction (i.e. domicile and death) and heirship (including marital status) must be determined. If there is a testament, it must be in adequate form, appropriately probated, and the disposition must reflect donative intent and be susceptible of being carried out. If necessary, the succession representative must be appointed or confirmed. Assets must be located and listed. Debts must be identified, and either satisfied or accepted. Appropriate sales of assets by the succession representative, if necessary, must be made. Payment of State inheritance tax, and federal estate tax , if necessary, must be made. Legacies must be delivered and receipted for. The petition for possession must be filed and the judgment of possession obtained. If real rights are involved, the judgment (or an abstract thereof) must be recorded in the appropriate conveyance records. Upon final disposition, the succession representative petitions for release from his duties. C.C.P. Art. 3081-3395.

Summarize the steps required for an intestate administration. Provide statutory citations.

The basic elements of both testate and intestate successions are similar. Jurisdiction (i.e. domicile and death) and heirship (including marital status) must be determined. If there is a testament, it must be in adequate form, appropriately probated, and the disposition must reflect donative intent and be susceptible of being carried out. If necessary, the succession representative must be appointed or confirmed. Assets must be located and listed. Debts must be identified, and either satisfied or accepted. Appropriate sales of assets by the succession representative, if necessary, must be made. Payment of State inheritance tax, and federal estate tax , if necessary, must be made. Legacies must be delivered and receipted for. The petition for possession must be filed and the judgment of possession obtained. If real rights are involved, the judgment (or an abstract thereof) must be recorded in the appropriate conveyance records. Upon final disposition, the succession representative petitions for release from his duties. C.C.P. Art. 3081-3395.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

As a general, statewide matter, no; in certain parishes, however, the casual practice of allowing heirs to convey without judicially opening the succession has been fairly common. If these types of conveyances are shown in the chain, the underwriter should be contacted prior to insuring a new transaction.

· Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

With regard to intestate successions, the heirs shall be recognized by the court, and sent into possession without an administration, on their ex parte petition, when all of the heirs are competent and accept the succession unconditionally, and the succession is relatively free of debt. A succession shall be considered 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. C.C.P. Art. 3001.

When a testament has been probated, and subject to compensation of the executor, the court may send the legatees into possession of their respective legacies without an administration of the succession, on their ex parte petition, when all the legatees are either competent or are acting through their qualified legal representatives, all competent residuary legatees accept the succession unconditionally, and none of the creditors of the succession has demanded its administration. C.C.P. 3031.

In addition, C.C.P. Art. 3421-3443 provides a procedure for handling a "small succession" , meaning the succession of a person who dies leaving property in Louisiana having a gross value of fifty thousand dollars or less. Specifically, it shall not be necessary to open judicially the small succession of a person who died intestate leaving no immovable property, and whose sole heirs are his descendants, his ascendants, his brothers and sisters, or descendent thereof, or his surviving spouse. Possession may be taken by submitting an affidavit to the inheritance tax collector.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

No.

Does your state provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Yes; based on an heir's share. While there is no specific time period for filing the inheritance tax return, no judgment of possession shall be rendered, no inheritance or legacy shall be delivered, and no succession representative shall be discharged unless satisfactory proof has been submitted to the court that an inheritance tax return, when required, a copy of the petition for possession, the formal inventory or the sworn descriptive list, the affidavit of death and heirship, a copy of the federal estate tax return, when required, and a copy of the will, if any, have been duly filed with the collector of revenue and that no inheritance taxes are due by the heirs and legatees, or that all taxes shown by the return to be due have been paid. C.C.P. Art. 2951.

Does your state provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

No inheritance tax lien. Note that LSA-R.S. 9:5011-5015 provides for a lien on all succession assets, for three months, in favor of a decedent's creditors and particular legatees, if the judgment of possession is rendered without an administration. This is perfected by a filing in the mortgage office where immovable property is located.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

A Listing Agreement may be executed by succession representative, without advertisement, on ex parte motion and order. (C.C.P. Art. 3286). The representative may execute an agreement to sell, without first obtaining approval, provided, however, the agreement contains the suspensive condition that the court approve the proposed sale. The representative must file a petition for authority to sell in accordance with the purchase agreement, within 30 days of execution of the agreement. (C.C.P. Art. 3281). The petition must set forth the legal description of the property, the price and conditions, and the reason for the proposed sale. (C.C.P. Art. 3281). The proposed sale must be advertised at least twice, and the notice shall state that any opposition to the proposed sale must be filed within seven days from the date of last publication. (C.C.P. Art. 3282). An opposition to a proposed private sale may only be filed by an heir, legatee, or creditor. If no opposition has been filed timely and the court considers the sale to in the best interests of the succession, the court shall render an order authorizing the sale. (C.C.P. Art. 3284).

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

No.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

A Listing Agreement may be executed by succession representative, without advertisement, on ex parte motion and order. (C.C.P. Art. 3286). The representative may execute an agreement to sell, without first obtaining approval, provided, however, the agreement contains the suspensive condition that the court approve the proposed sale. The representative must file a petition for authority to sell in accordance with the purchase agreement, within 30 days of execution of the agreement. (C.C.P. Art. 3281). The petition must set forth the legal description of the property, the price and conditions, and the reason for the proposed sale. (C.C.P. Art. 3281). The proposed sale must be advertised at least twice, and the notice shall state that any opposition to the proposed sale must be filed within seven days from the date of last publication. (C.C.P. Art. 3282). An opposition to a proposed private sale may only be filed by an heir, legatee, or creditor. If no opposition has been filed timely and the court considers the sale to in the best interests of the succession, the court shall render an order authorizing the sale. (C.C.P. Art. 3284).

Does your state provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

A foreign written testament, if in a form valid in Louisiana, may be probated pursuant to the provisions of C.C.P. 2811 et seq. A written testament subscribed by the testator and made in a foreign country, on in another state, or a territory of the United States, in a form not valid in this state, but valid under the law of the place where made, or under the law of the testator's domicile, may be probated in Louisiana by producing the evidence required under the law of the place where made, or under the law of the testator's domicile, respectively. (C.C.P. Art. 2888).