Is a Louisiana Succession Necessary?

The first step in any legal matter involving a deceased person (decedent) is to determine whether a Louisiana succession proceeding is necessary.  This section provides an analysis to help make this determination.

Did the Decedent Own Succession Property in Louisiana?

It is important to determine whether the decedent owned property that could require a succession in Louisiana.  If, for example, all of the decedent’s property is located in another state, it may be more appropriate to open the estate proceeding in that state.  If only some assets are located in Louisiana but the bulk of the estate is in another state, a Louisiana ancillary probate may be appropriate. And if the decedent didn’t own any succession assets, no estate proceeding will be required.

Certain types of assets are not considered part of a Louisiana succession.  These “non-probate” assets would include annuities, IRAs, life insurance policies, and qualified retirement plans with named beneficiaries.  If the estate consists exclusively of non-succession assets, a succession should not be required.

Note:  If any non-probate assets are left to someone other than the surviving spouse, it is important to analyze the assets under Louisiana’s community property rules.

Does the estate qualify for one of the Louisiana succession alternatives?

Louisiana provides five alternatives to the judicial succession process.  These alternatives apply only in very specific circumstances.

Louisiana Small Estate Affidavit

Louisiana law allows the transfer of the assets of a small succession by affidavit, without a formal court proceeding.  In this context, “small” means “less than $75,000.” If the value of the deceased person’s Louisiana property exceeds $75,000, the Louisiana small succession procedure will be unavailable.

The small succession law allows third parties to rely on the affidavit to transfer small succession assets, but it does not require them to do so.  As a practical matter, a court proceeding of some sort (usually a Succession Without Administration) is often required even if the succession could technically qualify as a small succession.  This is often the case if the decedent owned real estate. Louisiana’s small succession law is discussed in more detail in our section about the Louisiana Small Estate Affidavit.

Transfer of Motor Vehicles by Affidavit

The second alternative to Louisiana succession applies to the transfer of automobiles owned by the decedent.  Louisiana law provides a procedure for transferring title to a decedent’s automobile by affidavit. The procedure is available regardless of whether the decedent had a Last Will and Testament.

The transfer of an automobile by affidavit is a transfer by everyone who has an interest in the automobile to one person.  The affidavit must be signed by everyone with an interest in the automobile and submitted to the Louisiana Department of Public Safety and Corrections (Office of Motor Vehicles).  Upon receipt of the affidavit, the Office of Motor Vehicles will reissue title in the name of the designated person.

This procedure is usually used only when the succession is not judicially opened or when the car needs to be transferred to one person for insurance reasons before issuance of a Judgment of Possession. Otherwise, the automobile should pass through the estate along with the remainder of the assets.

Here’s a link to a copy of the affidavit:  Affidavit of Heirship for Motor Vehicles

Transfer of Bank Accounts and Last Wages

The last three alternatives apply specifically to employers and depository institutions (banks and credit unions).  These alternatives don’t create an enforceable right in the surviving spouse or heirs.  If the employer or bank is uncomfortable delivering the funds, they are not forced to do so.  But by providing liability protection, these laws do encourage the employer to make the transfers without requiring a succession.

Transfer of bank accounts and last wages come up in three circumstances:

  1. Transfer of Bank Accounts to Surviving Spouse – Up to $10,000 from a decedent’s bank account can be transferred to his or her surviving spouse by affidavit, without any court proceeding.  The procedure is available for accounts that belonged to the decedent or accounts that were community property between the decedent and the surviving spouse, and applies regardless of whether the account is the name of the decedent, the surviving spouse, or jointly titled.  The surviving spouse must provide the bank with an affidavit stating that the total of all amounts withdrawn from all banks does not exceed $10,000. [La. Rev. Stat. § 9:1513-1514]
  2. Payment of Wages and Certain Employment Benefits to Surviving Spouse – Louisiana law allows an employer to pay the surviving spouse of a deceased employee any wages, sick leave, annual leave, or other benefits of up to $6,000.  This method is unavailable if a divorce proceeding has been instituted. If a divorce proceeding has been instituted, or if there is no surviving spouse, the payment can be made to any adult child of the deceased employee.  [La. Rev. Stat. § 9:1515]
  3. Transfer of Small Deposits to Spouse or Heirs (Intestate Estates Only) – If the decedent did not leave a Last Will and Testament, Louisiana law allows a bank to transfer up to $5,000.00 to the decedent’s spouse and heirs at law.  The spouse and heirs must provide the bank with an affidavit establishing jurisdiction, relationship, and intestacy. To qualify for this proceeding, the depositor must die intestate with the account in his or her name and there must be $5,000.00 or less in all accounts. [La. Rev. Stat. § 6:315.1]

If the estate assets can be transferred using these alternatives, a court proceeding will not be required.  Most estates, however, will require some sort of court proceeding to fully deal with the estate.  The succession proceeding may not be complicated, though, especially if the estate qualifies for a Succession Without Administration. You can read more about the types of court proceedings in our section on Types of Louisiana Succession Proceedings.