December 17, 2020

Joshua Clayton

The Louisiana “Small Succession” Procedure

The death of a family member is emotionally challenging enough without taking into consideration legal issues that often need to be addressed. Surviving heirs may decide not to file legal papers relating to the succession of the deceased (decedent) family member because of the court costs that would result from seeking a court judgment placing the heirs in possession of the decedent’s property. Problematically, the decedent remains the record owner of valuable assets, particularly, real estate. Even when the heirs reach agreement amongst themselves on how to use or transfer the property, problems arise. For example, the homeowner’s insurance company may insist on a court judgment to prove that the heir may be listed as the named insured on the insurance policy covering inherited real estate.

One solution to surviving family members’ inability to afford the costs of succession proceedings is the Louisiana “small succession” procedure. In certain situations, this procedure allows the heirs of the deceased family member to finalize the transfer of property without filing a lawsuit. Louisiana law defines a succession as “small” if either (1) the decedent died leaving property in Louisiana with a gross value of no more than $125,000, or (2) the decedent died at least 20 years ago. Notably, your deceased loved one’s succession qualifies for “small” treatment under option (2) regardless of how high or low the asset value is.

An additional requirement that often applies is that the decedent died intestate, meaning, without a will. But even if the decedent died testate–left a will–the succession still qualifies for “small” treatment if the decedent left no real estate at death, and if the will leaves the property to the same people who would have been the legal heirs in the absence of a will.

If a succession meets the above definition of “small,” the decedent died intestate, and there are no heirs other than descendants, ascendants, brothers or sisters, nieces or nephews, or a surviving spouse, a lawsuit need not be filed. Instead, two people with knowledge of the relevant facts can execute an affidavit, attach a certified copy of the death certificate, and record the affidavit in the conveyance records of a parish where any real estate left by the decedent is situated. The identity of the two people who must sign the affidavit depends on whether the decedent has a surviving spouse and the number of heirs. The affidavit needs to include several specific pieces of information such as a list of property the decedent left at death, the value of each item of property, and the names and addresses of the heirs. The affidavit must satisfy somewhat different requirements for those “small” successions where the decedent left a will.

Louisiana law provides that when the small succession affidavit is properly executed, it is “full and sufficient authority for the payment or delivery of any money or property of the deceased described in the affidavit to the heirs of the deceased and the surviving spouse in community” by any bank or any person who has the property in his possession or control.

Small successions that do not qualify for the affidavit procedure require a succession proceeding to be filed in court. Still, if the succession is valued at less than $125,000, court costs will be cheaper: only one-half the court costs in similar proceedings in larger successions (but the minimum total court cost is $5).

In short, if there is real estate or other valuable inherited property in your family but you haven’t filed legal papers, you may be able to use the small succession procedure to bring your family certainty and closure at an affordable price.


Tags

Affidavit, Notary, Real Estate, Succession, Will


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