many states, the process of transferring property at death to heirs through the court system is referred to as probate; in Louisiana, that process is typically called a succession. A normal succession can be costly and time consuming. This month we will look at the basics and benefits of a Louisiana Small Succession Affidavit, a sometimes cheaper and easier way to transfer property at death.
Any time a person wants to transfer any type of property during their lifetime (whether it be a vehicle, stock or real estate), they must sign some type of document to accomplish that transfer. Of course, when they pass away, they can no longer sign documents to transfer their property and that is why a succession is necessary. In a succession, a list is made of all the assets and debts of the ’s estate and a petition is filed in court, asking the judge to put the deceased’s heirs into ownership of the assets described in the list.
What type of succession is required depends upon the type and value of the assets owned. When considering a Small Succession Affidavit, you first need to answer two questions. Does the estate qualify as a small succession because its value is $125,000 or less? Do you meet the other requirements for using a Small Succession Affidavit?
The threshold requirement is whether the deceased’s Louisiana property has a gross value of $125,000 or less, valued as of the deceased’s date of death. If the property is owned by a married couple, the $125,000 amount applies only to the deceased’s interest and not the total value of the property. Also, real estate located outside of Louisiana is not included in the value as the law applies only to property located in Louisiana. However, the $125,000 limit does include personal property (regardless of where it is located), if the deceased was domiciled Louisiana at the time of their death.
If an estate qualifies as a small succession, the next step is determining if a Louisiana Small Estate Affidavit can be used to transfer the property. If so, you may be able to avoid a court proceeding.
Louisiana law allows the transfer of small succession property by affidavit if it fits the following guidelines:
- the estate qualifies as a small succession;
- the deceased died intestate (without a will) while domiciled in Louisiana or died with a will while living in another state if the will was probated in the other state; and,
- the deceased’s sole heirs are his or her descendants, ascendants, brothers or sisters, or descendants of brothers and sisters, surviving spouse, and/or beneficiaries of the deceased’s will that was probated in another state.
If the estate meets those requirements, a Louisiana Small Estate Affidavit is probably available.
If you’ve reached this point in the process, the final step is signing the affidavit. Louisiana’s law specifically outlines who can sign and these rules vary from case to case based on family dynamics. If the deceased had a surviving spouse, the spouse and at least one surviving heir must sign. If there is no surviving spouse, two adult heirs must sign. And if the deceased only had one heir, that heir and a person who has knowledge of the facts listed in the affidavit must sign. Any heirs who are minors can have their natural guardian sign for them. (This is usually a parent.)
While these hoops seem easy enough to jump through, determining whether a Small Succession Affidavit is proper, and ensuring the document contains the right information to adequately transfer ownership can be tricky; therefore, you should always use an experienced attorney to guide you through the Louisiana Small Succession Affidavit process to make sure everything is done correctly and the heirs are properly placed into ownership of the deceased’s property.
The information provided is not intended to be legal advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation. Legacy Estate & Elder Law of Louisiana, LLC has offices in Baton Rouge and Lake Charles, Louisiana and the primary focus of its practice is estate planning, probate, special needs planning, and elder law.