Putting a Plan Together
When a loved one passes away without a Last Will and Testament and without a Probate Avoidance Trust, their estate must proceed via intestacy.
Intestacy means the laws of Louisiana will determine who gets what. It also determines who must sign what, who must get notice, how creditor’s claims are paid, and who can be the succession administrator.
Before any transfer of property takes place, a complete inventory of the decedent’s assets and liabilities must be completed and filed with the court. All of the decedent’s heirs will get a certain undivided interest in the whole estate by operation of law, so all debts must be assessed and paid to avoid personal liability. The heirs can agree however to divide the estate as they see fit.
Administration is the default procedure for intestate successions. Only if the estate is relatively free of debt and all of the heirs agree to take possession can an administration be waived.
Typically, the court will confirm the first qualified individual to petition the court to be appointed succession representative (often called administrator or an executor if there was a Will). Therefore, it is important to get there first if you are concerned with how others might manage the estate.
The administrator is a fiduciary, charged with collecting, preserving and disbursing the property of the decedent to their heirs. When there are debts or obligations, the administrator is the one that ensures these are paid or transferred to the heirs.
Because of this, the administrator is the person that retains the lawyer who will handle the succession. That is why it is vital that you choose an attorney that focuses on succession law. You won’t have to worry though, because you have an experienced and focused successions attorney at Field Law to help guide you at each step along the way.
If all of the heirs agree upfront, the law allows the administrator to serve independently. This allows the administrator to leave the decedent’s funds in interest earning accounts or investments, negotiate and settle liabilities of the estate, and sell property of the decedent without additional court orders or public notices. It also allows us to seal the inventory of the estate – making the value of the decedent’s assets and liabilities private.
Possession without Administration
The heirs are not required to administer the estate neither is an administrator required to be appointed. If the estate is relatively free from debt and the heirs wish to accept the succession as-is, they may jointly petition the court for a Judgment of Possession.
This can be advantageous as it allows for all the required papers to be filed with the court at once, meaning the succession is done faster. The heirs of the decedent must accept the succession as-is, meaning they could be liable to return all or part of their inheritance if there was an undisclosed debt of the decedent.
If the decedent did not have a complicated estate or large debts when they passed away, possession is generally recommended to save the estate time and money.
In many cases, a succession can be completed with minimal court intervention. When there are disputes, however, litigation may be necessary. In such cases, our attorneys are experienced in fiduciary complaints and working with all parties to amicably resolve the issues.
Contact Us For A Free Initial Consultation
Field Law is based in Baton Rouge, but we serve clients throughout Louisiana. We are also pleased to work with clients outside the state on matters related to Louisiana estate law and successions. To arrange a free consultation, call us at (225) 341-8221, or get started.