In Probate/Succession

In many states, the process of transferring property at death is referred to as probate; in Louisiana, that process is typically called a succession. There are many misconceptions about what a succession is and when it is required and this article attempts to clarify those misconceptions.

Any time a person wants to transfer any type of property during their lifetime (whether it be a vehicle, stock or real estate) they have to 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 of the assets and debts of the deceased’s estate and a petition is filed asking the judge to put the deceased’s heirs (those entitled to inherit when there is no will) or legatees (those beneficiaries named in a will) in possession of the assets described in the list. 

Thus, whether there is a will or not, a succession is usually required.  There are a few instances where a succession is not required.  The first is if all of the deceased’s assets are owned in accounts that do not pass through the probate estate.  Life insurance, annuities and retirement plans with valid beneficiaries are non-probate assets that do not require a succession for transfer.  Rather, they transfer to the named beneficiary in accordance with the rules of the account holder.  Generally, a death certificate and the account holder’s forms must be submitted to accomplish the transfer.

Also, property owned in a trust and not by an individual does not require probate as the trust continues after the person’s death and the property is transferred to the trust beneficiaries in accordance with the trust’s terms.  For most other types of property (bank accounts, CDs, investment accounts, real estate, and personal property), a succession is required for a valid transfer.

What type of succession is required depends upon the type and value of the assets owned.  If the deceased’s assets were less than $75,000 and he owned no real estate then a small succession affidavit which does not have to be filed with the court can be used to transfer the assets.  If, however, the assets are greater than $75,000 or there is real estate involved, a regular succession through the court system will usually be required.

For deaths occurring prior to July 1, 2004, Louisiana inheritance taxes are due and interest and penalties began accruing nine months after the date of death.   So it’s important to complete successions for those dying before July 1, 2004 as soon as possible to avoid interest and penalties.  Between July 1, 2004 and January 1, 2008, inheritance taxes were only due if a succession was not opened within nine months from the date of death.  Again, it was important to open the succession as soon as possible to avoid those taxes.  However, since January 1, 2008, Louisiana does not impose an inheritance tax on estates for persons dying after that date.  Since no taxes are due some take the position that a succession is not required within any certain time period.  However, there are still many practical reasons to complete a succession as soon as possible.

The first is that unless a succession has been opened, property belonging to the deceased cannot be sold or transferred.  Thus, the desire to sell the deceased’s property is often the impetus to begin the succession process.  Next, for income tax purposes, a step up in income tax basis is allowed for property passing from the deceased to his heirs or legatees.  This means the heirs and legatees inherit the property at the value it had on the deceased’s date of death and only pay income tax on the difference between that value and the price they sell it for.  This step up in basis can often provide a substantial income tax savings for heirs and legatees.  It is much easier to value property if it is done in close proximity to the date of death.  If many years pass before appraisals are done, it may be more difficult and costly to value the property to receive this stepped-up basis.

Also, as years pass, heirs or legatees may die making the succession process more difficult and costly as lost heirs must be found in order to complete the succession.  I have been involved in many successions that took years to complete because they were not done in a timely manner and heirs had to be located all over the country.  I have also been involved in those we were unable to complete because we could not find some of the heirs.   Finally, wills and other important documents necessary to complete a succession may be lost with the passage of time and the correct parties might not even inherit as intended by the deceased because the will cannot be found.

Conclusion: Succession in Louisiana

As you can see, a succession will be required in most circumstances when a person dies.  Whether that is a small succession by affidavit or a regular succession through the court system depends on the value and character of the deceased’s property.   However, if he owned real estate, a regular succession through the court system is usually required.  Also, from a practical viewpoint, it is best to complete that succession as soon as practicable after death to avoid lost documents, easier valuation of property, and the search for lost heirs.  It is not only advisable, but also necessary, to complete the succession if the deceased’s property is to be sold or transferred to others. 

Showing 21 comments
  • stephanie jackson

    need to know more about sucession and I have a question about a sucession on a acre of land I’m on and the owner of the land has passed away and she doesn’t have any children are passed the land on to anyone. but has a care person of the land and he don’t own it.

  • Edwina Knight

    can I get an application for a succession online or is it necessary to see a LAWYER?

  • Mary Mramor Dewhurst

    My mother Viola Mramor had a total of 354.84 in stocks and dividends, does this amount require a succession from an attorney?

  • Mary Mramor Dewhurst

    She had no property or anything else to her name when she passed away 5 years ago.

  • tammie morvant

    My husband passed away last year he has a will leaving our home to me. Why do I have to pay to open. Succession

  • Carol Sue McWhorter

    Is it legal for the other heirs to sell without my signature?

  • Amanda Jackson Clay

    I am currently trying to open succession on my mother’s property located in Beauregard Town. However, my mother has been deceased since 1997. I am one of two siblings. I recently received a statement from the assessor’s office saying $447.00 was due in taxes. I have paid the taxes every year. I now need advice and help in what to do. I do not want to lose my family home. It was passed to my mother from her mother, however my mother had Alzheimer’s and we could not do any thing doing that time. Please help me.

  • Dee Davis

    Can a succession be done without attorney?

  • Tinisha Williams

    i have an issue where my father just passed with no will. We all agreed to have my sister be named executor of his estate, which was just his 401k from his job. Altogether, my father’s 401k was about $115,000. Federal and Louisiana state taxes were taken out. (Confused because above it says Louisiana doesn’t tax inheritances after 2008) Anyway, my sister opened an estate account and then will have the funds transferred into her personal account to be distributed amongst us siblings. Now, my issue is our attorney. His fees keep changing and increasing. He says one thing then another which is why I requested he give us his flat out rate and fees. My question is do we have to file a succession even though my father had no property and if so why, if my sister can just divide the money up between us herself. 2, if we decided not to file a succession, and do the dividing up ourselves, will she be penalized. 3, why did Louisiana tax us if above it says that Louisiana doesn’t tax after 2008.

  • Herbert Gordon

    Currently involved in a process where one lawyer says a succession is required before property can be sold,and the other one ssays it is not necessary, but according to what I have just read a succession is required before any deceased person property can be sold.
    My lawyer generated a Purchase Agereement for the property to be sold, but it was not accepted by the other side of the sales bodies because he said this long Residential Contract approved by the Louisiana Real Estate Commission must be filled out prior to the sale. I was told the form may be required for realtors, but is not required for attorneys? These are not comments, as suggested, but questions, if allowed ….. thanks!

  • Herbert Gordon

    Very good reading. Very informative!

  • Robert

    My wife has passed we have grown children do I need to do succession in order to sell my property

  • Pam Lindsey

    so I’m screwed!!!! 15 years and 5 children later. Even if I can get the remaining children to agree on transferring their portion of asset without argument, and without wanting their share of any monies…

  • gil penton

    What do I have to do to get a copy of my greatgrandfather’s succession He died 14feb1874 around Thibodaux I have never tried to get anything from a city government before so I am lost Any direction would help me Thank you for your time Gil

  • Don A. Theriot

    I am Single and am in the process of filing a Revokable Living Trust which involves Real Estate only! I only have one child and will be leaving said real estate to this child! There should be no necessity of filing for Succession after I pass away in this case. Am I right or wrong? I live in Louisiana, and I do know that Louisiana has Napoleon Law, very antiquated law, of which is quite contrary to the other States of the USA!
    Kindly respond: Don A. Theriot; CSR

    As well as I have a brother of whom his wife passed away. Can he file for Succession on his own, without involving an Attorney?

  • Terri Floyd

    Does the succession of land need to be done if not selling or transferring

  • Lara Vergenal

    Greatly appreciated, might save $ and definite stress

  • Clara Kahan

    Hello there,
    My father passed about a month 1/2 ago. He has a money market account in another country and left to beneficiaries or will. My mother, who is still his legal wife has no idea how to transfer that money market to her name.
    How do we obtain a Succession document to start the process?
    Thank you,

  • M

    At what date is the property actually inherited? Upon the death or after the succession is processed? What about property taxes? Who has to pay those if the due date occurs before the succession process.

  • Vincent Honey

    Are there statues regarding sole heirs in Louisiana with no will. Sample: relative ueses false documents to take a home.

  • Jaclyn

    My dad died with a will and left my step mom everything. A succession was done by her kids, my dad’s s step children, not her bc she was incompetent at the time in rehab and none of my dad’s kids were notified of succession. So her kids filled and signed the succession court papers and signed my dad’s name on succession after his death. In judgment of possession 2 vehicles were left out, one car was in his name and other was financed. Truck got repossessed but car was never put out his name and is still in his name what rights does his children have? Can I sue because I didn’t get notified of succession? What can be done with vehicles that still in his name? My step mother is incompetent at this time and is in rehab can’t speak doesn’t know who she is most of the time. Her daughter is her poa and trying to fight us for the car. We received nothing from my dad bc of his will leaving everything to her. And how does my dad’s signature end up on succession of it was filed after his death.?

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