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Louisiana Inheritance Laws

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For over five decades, Louisiana's court system was embroiled in what would become the longest litigation case in U.S. history. At the heart of this legal saga was Myra Clark Gaines, a woman who asserted her claim to a vast inheritance from her biological father, Daniel Clark. The latter was a prominent New Orleans business owner and the first congressperson of the Territory of Orleans.

Gaines' claim rested upon a second handwritten will penned by Clark, dated July 13, 1813. This document, if proven authentic, would have bestowed Clark's entire fortune upon Gaines. However, the will's inexplicable disappearance blocked Gaines's pursuit of her rightful inheritance.

Undeterred by this setback, Gaines processed her claim through both Louisiana state and federal courts. However, she succumbed to a sudden illness before the case could be resolved. In a landmark ruling four years later, the U.S. Supreme Court recognized her heirs as the rightful beneficiaries of Clark's estate, awarding them $576,707.92. 

This verdict cemented Gaines' legacy as a champion for inheritance rights and underscored the crucial role of wills in ensuring the orderly distribution of a deceased's assets. A well-crafted will not only facilitates the smooth transfer of property to designated heirs but also safeguards the rights of family members.

With that in mind, this article aims to be a valuable resource for individuals navigating the complexities of estate distribution and inheritance rights, particularly when a loved one has passed away with or without a will. 

What Happens if Someone Dies With a Will in Louisiana?

In Louisiana, when a person passes away with a will, the designated executor manages the estate and distributes it to the named heirs or beneficiaries. The executor's primary duty is to ensure that the testator's wishes are carried out to the fullest extent. 

Here are the key responsibilities of an executor:

  1. Obtaining death certificates: Secure multiple copies of the deceased's death certificate and distribute them to relevant institutions, such as creditors, banks, and government agencies like Social Security or Veterans Administration, to discontinue benefits.

  2. Locating and filing the will: Retrieve and submit the will to the court to initiate the probate process.

  3. Inventorying assets and properties: Create a comprehensive inventory of all assets and properties belonging to the deceased.

  4. Transferring titles: Transfer ownership titles of assets and properties to the designated heirs.

  5. Selling assets and distributing proceeds: Liquidate assets, if necessary, and distribute the proceeds to the beneficiaries or heirs as specified in the will.

  6. Settling debts and taxes: Pay off all outstanding debts, taxes, and mortgages associated with the estate.

  7. Representing the estate in court: Defend the will in court if it is challenged.

Alongside these responsibilities, executors in Louisiana have certain rights:

  • Compensation: They are entitled to receive a compensation of 2 ½% of the gross estate value or a specific amount stated in the will.

  • Legal assistance: They may ask a probate attorney to assist them in navigating the legal complexities of estate administration.

  • Protection from personal liability: They are not personally responsible for paying estate taxes or debts unless they misuse estate funds.

  • Resignation or declination: If the responsibilities become overwhelming or the designated executor is unwilling or incapable of fulfilling the role, they may resign or decline the appointment.

Executors in Louisiana must uphold the highest standards of ethical conduct and act solely in the best interests of the deceased and their heirs. Here are some prohibited actions:

  • Altering will provisions: They cannot change the terms of the will.

  • Impeding will contests: They cannot stop beneficiaries or heirs from contesting the will.

  • Selling assets below market value: They cannot sell assets for less than their fair market value except with the beneficiaries' consent.

  • Signing an unsigned will: They cannot sign a will that lacks the testator's signature.

  • Carrying out the will during the testator's lifetime: They should not carry out the will while the testator is alive or in good health. 

What Is Considered a Valid Will in Louisiana?

In Louisiana, a will must adhere to specific legal requirements to be considered valid. First, the will must be signed by witnesses. Second, the testator must be of sound mind and not under undue influence at the time of creating the will. If the testator suffers from dementia or Alzheimer's at the time of creating the will, the will may be deemed invalid.

During the probate process, the original copy of the will must be used. If it is unavailable, the state will assume that the decedent intentionally destroyed the will, rendering it invalid. However, there are exceptions to this rule. For instance, if the executor's home is destroyed by fire, a copy of the will may be accepted.

Louisiana recognizes two primary types of wills:

  • Holographic: A valid holographic will must be entirely handwritten, dated, and signed by the testator. The testator's signature must be at the document's end. When presented in court, two witnesses must attest to the testator's authorship of the will.

  • Notarial: For a valid notarial will, the testator must sign each document page. Witnesses and a notary must also sign the will, indicating its creation in their presence. Special provisions exist for blind and deaf individuals to create valid notarial wills.

Louisiana’s Probate Process

The probate process in Louisiana commences with filing the deceased's will in the appropriate court. To obtain a court order authorizing the probate process, a petition for probate must be filed. 

The executor must submit an Oath of Office and provide a bond or other form of security to safeguard against potential misappropriation of funds. The bond's value should be equivalent to or exceed that of the estate's movable assets. The bond can be secured through a mortgage on real estate, a commercial bond, or a cash deposit.

The executor must also prepare and file a sworn detailed descriptive list of the estate's assets and liabilities, along with their respective fair market value. Under Louisiana law, this document can be filed under seal for privacy purposes. 

If the deceased owned immovable property outside of Louisiana, an ancillary probate proceeding must be initiated in the parish where the property is located.

Note that there is no set deadline for filing for probate in Louisiana. As such, wills can be filed up to five years after the probate process is initiated. Generally, probate cases in Louisiana are completed within six to twelve months. However, complex estates may require a longer timeframe.

Non-Probate Assets in Louisiana

Not all assets in Louisiana are required to go through probate. Listed below are the non-probate assets in the state:

  • Life insurance.

  • IRA retirement accounts.

  • 401k and 403b accounts.

Contesting a Will

In Louisiana, those with a vested interest in the testator's estate can challenge the validity of a will. These individuals, known as "interested parties," may contest a will if they have a legitimate reason to do so or stand to inherit assets from the deceased's estate. A will can be challenged within five years from the date it is admitted to probate. 

Common grounds for contesting a will include:

  • Fraud or mistake: The will was created through deception or error.

  • Forgery or improper form: The will is not authentic or does not comply with the legal requirements for a valid will.

  • Lack of testamentary capacity: The testator was unable to comprehend the will at the time of its execution.

  • Improper witness or notary procedures: The witnesses or the notary was not present when the testator signed the will.

What Happens if Someone Dies Without a Will in Louisiana?

If an individual in Louisiana dies without a will, their estate must be given to their heirs or beneficiaries in accordance with the law. This process is called intestate succession.

Generally, the estate will be distributed to the decedent's family members, including their spouse, children, parents, grandparents, and grandchildren. The specific distribution of the estate will depend on the degree of kinship between the decedent and the heirs, as well as whether the assets are considered communal or separate property.

Anyone can apply to be the administrator of an estate in Louisiana. To do so, they must file a petition with the court in the parish where the decedent resided at the time of their death. It must include a death certificate and any other documentation the court requests. 

Once the petition is approved, the administrator must open a bank account in the name of the decedent's estate. As previously mentioned, they are responsible for managing the estate, including inventorying assets, paying debts, and distributing property to the heirs.

Louisiana has two main types of succession administration: succession without administration and succession with full administration.

In a succession without administration, there is no need for an appointed personal representative or executor. Instead, an attorney obtains a Judgment of Possession, which authorizes the transfer of asset titles after the estate is filed. This option is typically used when there are no outstanding debts or disputes among the heirs.

Meanwhile, succession with full administration is required in the following situations:

  • There is a question about the estate's solvency and the will's validity.

  • The decedent’s identity is unclear.

  • The heirs have not received their rightful inheritance.

  • Assets need to be sold to pay creditors.

Spousal Rights

In Louisiana, if a person dies without a will, their surviving spouse is entitled to receive an inheritance share. However, the amount or percentage of the share depends on various factors.  

If the deceased person had no siblings, parents, or descendants, the surviving spouse would inherit all of their separate and community property. If the deceased had surviving parents, the spouse would inherit their community property. 

Furthermore, a spouse could inherit or use the deceased’s community property if they had children together. If the deceased and their spouse were legally separated but not yet divorced, the spouse would not be entitled to inherit any of the deceased’s estate.

Essentially, the state follows a combination of separate and community property inheritance laws. Surviving spouses can inherit properties acquired during and before marriage. However, inheritances and gifts given to one spouse are considered separate property, even if obtained during marriage.

Children’s Rights

In Louisiana, children can inherit their parent's estate even if there is no will. However, not all children are automatically entitled to a share. The state has specific rules for determining which children are eligible to inherit and how much they will receive.

Beneficiary

Description

Legally adopted children

Will receive an estate share just like biological children.

Posthumous children

Will receive a share.

Children placed for adoption

Are entitled to receive an intestate share.

Foster children and stepchildren

Will not automatically receive a share if the parent did not legally adopt them.

Biological children born outside of marriage

Are considered legal heirs if their parent acknowledges them as their child or if paternity is proven in court.

Other Surviving Relatives’ Rights

If the testator dies with no will and does not have a spouse or children, their family members or relatives can get an inheritance share. Below are Louisiana’s related provisions:

Beneficiary

Description

Parents

Can inherit everything if the testator dies without a spouse, children, or siblings.

Siblings

Can inherit the decedent’s estate if the testator dies without a surviving spouse, parents, or children. If the testator has more than one sibling, their assets will be equally divided.

Grandparents

Can inherit the decedent's estate if the testator dies without a spouse, parents, children, or siblings. Paternal and maternal grandparents inherit equal shares.

Other Relatives

Can inherit the testator’s estate if the testator dies without the family members mentioned earlier. 

Estates With No Heirs

As stated above, in Louisiana, if an individual passes away without a will, all their assets must be distributed to their family members or closest relatives. However, if the decedent has no heirs or beneficiaries, the state will handle their assets or property. This case rarely happens, though.

Unique Situations in Louisiana Inheritance Law

Louisiana's inheritance laws are intricate. Unlike most states, Louisiana has distinct inheritance rules for half-siblings, who do not inherit the same share as full ones. Basically, inheritance is determined by bloodline. For instance, if a sibling shares only one parent with the deceased, they inherit everything except the estate from the other parent's side.

Heirs outside of the state are still entitled to their property share, and immigration status has no bearing on inheritance rights. However, heirs convicted of murdering the decedent are barred from receiving an inheritance. They forfeit their inheritance rights if they attempt or intentionally kill the testator. In rare instances, a beneficiary convicted of second-degree murder or involuntary manslaughter may still receive an inheritance share.

As for members of the LGBTQIA+ community, navigating Louisiana's inheritance laws can be tricky. Despite same-sex marriage being legal in the state, couples face difficulties distributing their properties due to specific regulations. For example, the inheritance share hinges on whether the child was adopted by both parents or is the biological child of one parent. As such, same-sex couples are advised to establish a trust to ensure their child inherits their estate upon their passing.

Does Louisiana Impose Inheritance and Estate Taxes?

In Louisiana, individuals do not need to pay inheritance taxes when they receive property from a deceased person. Instead, the federal government imposes a tax on the transfer of property upon death, and the amount depends on the estate's value. 

That said, there are ways to reduce estate tax liability. These include:

  • Getting life insurance: Heirs can invest in a life insurance policy and use the proceeds to pay estate taxes. Structuring the policy as an Irrevocable Life Insurance Trust can prevent the death benefit from being included in the decedent's taxable estate. Private Placement Life Insurance can also offer protection from income and estate taxes.

  • Gifting before death: By taking advantage of annual and lifetime gift exemptions, individuals can transfer assets to their intended beneficiaries tax-free, thereby reducing the size of their taxable estate.

  • Employing trusts: Testators can use Charitable Lead Annuity Trusts to pass their assets to future generations while avoiding estate taxes. Other options include Spousal Lifetime Access Trusts, Grantor Retained Annuity Trusts, and Dynasty Trusts.

Legal Resources Related to Inheritance Law in Louisiana

Ultimately, individuals and families dealing with inheritance-related matters are encouraged to seek help from probate lawyers and estate planning attorneys in Louisiana. They can also refer to the following resources for more information and legal assistance: 

Louisiana State Bar Association - Estate Planning and Administration Division

The Estate Planning and Administration Division of the Louisiana State Bar Association is a specialized group of attorneys dedicated to providing legal guidance to individuals and families. EPAD members are experts in Louisiana estate planning laws, including wills, trusts, gifts, and taxes. 

They can assist with a range of estate planning needs, from creating basic wills to developing complex estate plans that incorporate wealth transfer strategies. EPAD members also provide representation in probate and trust administration proceedings, ensuring that estates are settled efficiently and in accordance with the decedent's wishes.

Louisiana Legal Aid Services

Louisiana Legal Aid Services offers free or low-cost services to individuals and families in the state. It caters to low-income residents who need legal advice regarding property issues. The organization also tackles matters concerning marriages and civil unions, paternity rights, foster care, taxes, and insurance.

Louisiana Bar Foundation

The Louisiana Bar Foundation is a nonprofit organization operating as the largest state funder of civil legal aid. It offers legal assistance to families and individuals dealing with non-criminal, civil legal challenges. The LBF partners with various organizations, including the Louisiana Access to Justice Commission, the Blue Cross and Blue Shield of Louisiana Foundation, and the Louisiana Attorney Disciplinary Board.

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