Reviewing the Last Will and Testament
When a loved one passes away with a Last Will and Testament, their estate passes via testacy – meaning that their Will controls the process. The Will is the plan that the executor and legatees will follow to complete the succession process.
Before any transfer of property takes place, a court must be presented with the Last Will and Testament of the decedent. It is important for the family, other beneficiaries and the executor named in the Will to understand the decedent’s wishes as they can often deviate from each might have expected.
At Field Law, we recommend meeting with one of our succession attorneys within three months of the passing of the decedent. Sooner if there is a need to quickly access funds or there is a business that must continue to run.
There are only two types of Will that are valid in Louisiana, (1) an olograhic Will which is entirely written, dated and signed by the testator and (2) a notarial Will that meets the requirements of form contained in the civil code. Wills prepared by Field Law and other firms are notarial. There is an advantage to notarial Wills in that the law says they shall be probated by the court upon presentment – unlike olograhic Wills which require additional evidence of authenticity and review by the court.
Estate administration is recommended when the decedent has certain affairs that will take time to conclude, such as owning a small business, settling a property damage claim on their home, needing to prepare and file an income tax return, or when assets and liabilities are unclear.
While an administration can make the process take longer, the benefit is that all of the obligations and liabilities of the decedent are extinguished before you are placed in possession of your inheritance – meaning it is free and clear.
Administration allows the executor to locate, collect, manage and preserve the estate of the decedent until it is ready to be passed to the legatees – the beneficiaries named in the Will.
A final estate inventory is prepared at the end of the process, but typically the executor can disburse legacies as soon as they determine there are no obligations that would affect their transfer without having to wait until the end of the process.
Typically, a more recently drafted Will provide for independent administration. This allows the executor 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 executor and legatees are not required to administer an estate if it is relatively debt free and there is no need to administer the estate to handle any outstanding obligations or liabilities of the decedent.
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 legatees 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.
The executor is the person that moves the process along, gathers the property of the decedent and then disburses it. The executor is in charge of the succession. When there are debts or obligations, the executor is the one that ensures these are paid or transferred to the legatee(s).
Because of this, the executor is the person that retains the lawyer who will handle the succession. If you are the executor, it is important that you realize you are a fiduciary – you must at all times act prudently to protect the estate’s assets and deliver them to the legatees.
That is why it is vital that you choose an attorney that focuses on succession law. You don’t have to hire the attorney who drafted or notarized the Will – even if the Will says you do. 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 you are left a specific piece of property – such as a piano or a sum of cash – you are a particular legatee. Your legacy must be satisfied first, before the remainder of the estate is distributed.
General or Universal Legatees
If you are to inherit a portion or full ownership of the decedent’s estate, you are a general or universal legatee, respectively. Typically, all costs and unsecured debts of the estate are first assessed against your legacy. You generally have to wait until the end of the succession to get all of your inheritance.
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 defending Will challenges, 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 send us an email.