Once the succession has gone through Louisiana estate administration (if required), the Louisiana succession attorney will prepare a Petition for Possession and other documents needed to close the succession. The attorney then presents these documents to the court and obtains a Judgment of Possession. A Judgment of Possession is a court order formally transferring title to the decedent’s assets to the appropriate parties.
It is important to realize that the Judgment of Possession comes at the end of a succession in Louisiana. It is not a standalone document that can simply be prepared by a Louisiana succession attorney; rather, it is an order signed by a judge stating that everything necessary has been done to put the heirs or legatees in possession of a deceased person’s property.
Clients often contact a Louisiana succession attorney because someone has told them that a Judgment of Possession will be required before an asset can be transferred. They ask the attorney how long it will take them to prepare a Judgment of Possession, not realizing that it is only one document that is signed by a judge as part of a larger succession proceeding.
The purpose of the Judgment of Possession is to provide third parties (such as banks, investment brokers, or real estate title companies) with a court-ordered transfer of assets to the heirs or legatees. The Judgment of Possession puts the heirs or legatees in possession of the decedent’s assets. The Judgment of Possession will:
- Identify the parties that are entitled to the decedent’s assets (the spouse, heirs, legatees, or usufructuary, as applicable);
- Put the proper parties in possession of the assets;
- If the decedent is married, recognize the surviving spouse as being entitled to possess an undivided one-half of all community property and possess a usufruct over the remaining half of community property; and
- List the last known address of at least one heir, legatee, or surviving spouse that is put into possession of the property.
If the Judgment of Possession recognizes a usufruct (life estate) or testamentary trust that was created under the decedent’s Last Will and Testament, judgment is treated as incorporating the terms of the usufruct or trust. This avoids the need to include the terms of the usufruct or trust in the text of the Judgment of Possession.
Although it is not strictly required, the Louisiana succession attorney will usually include a legal description of all real estate that is covered by the Judgment of Possession. This helps create a clear chain of title in the land records and can prevent problems when the property is later sold or mortgaged.
