Louisiana Successions & Probate
Probate & Successions in Louisiana
If you are here to learn about Lousiana Probate after the passing of a loved one, we first want to say that we are very sorry for your loss. We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
With that said, probate in Louisiana is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Probate in East Baton Rouge Parish is typically necessary to
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
In Louisiana, if someone has more than $125,000 of assets, they’ll have to file a succession in probate court. For those with less than $125,000 of assets, they can bypass court using something called as “Small Succession Affidavit”. Regardless of how large the estate, it’s important to seek legal advice to determine the best option for you.
What’s So Bad About Probate in Louisiana… And What Should I Do Next?
Many residents of East Baton Rouge Parish have heard that probate is bad news. It tends to be very expensive, it’s time-consuming, and it’s also a public process.
The easiest way to avoid the probate process is to plan before you die; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
How is a Succession Started in Louisiana?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
The succession proceedings should be open as soon as possible following the death of the decedent. Opening a succession is typically required so that decedent’s bank account or other assets can be used to pay funeral expenses or outstanding medical bills. We don’t recommend you wait too long. Delays can cause difficulties such as lost documents or wills, or face tax sales of a home due to unpaid taxes. Waiting too long after death to start the process makes things more complicated and expensive.
The first step is determining whether the decedent left a will. If there’s a will, the executor named in the will starts the process by filing the will. Some issues that can come up at this phase are whether the will is valid, and whether the decedent had the mental capacity to make a will.
For a person who dies without a will, the issues may be related to whether there is an heir, and who the heir or heirs may be. Either way, there are many tasks associated with death, including managing the estate, taking an inventory of the assets, making sure the debts of the decedent are paid, and distributing the assets. Once this is all complete, the succession can be closed a judgment of possession issued to confirm the ownership of the heirs.
How is the Succession Representative Chosen?
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
The administrator or executor needs to file the will with the probate court to get official “letters of administration” which then allow him or her to manage the estate, pay the creditors of the decedent are paid, and distribute the assets to the heirs or beneficiaries. The duties of the administrator include
How Does the Executor Get Paid?
Executor compensation is typically outlined in the terms of the will. However, if the will has no provision on compensation, Louisiana law provides that the Executor gets paid 2.5% of the value of the gross estate.
Could I Be Held Personally Liable For Making a Mistake as an Executor?
Being an Executor is a big responsibility. Louisiana’s probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.
My Loved One Had a Trust…Will We Need to Go Through Probate?
In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Unfortunately, many people who have a Trust think they have it all taken care of. But time and again, family members’ of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust. That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.
It’s why we do things so much differently than most other lawyers and law firms, here at Progeny Law Firm.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if There is No Will?
If there is no will or trust, the estate will be distributed according to Louisiana’s intestacy laws. The order of distribution will vary depending on whether you are married, have children or own separate or community property.
How Long Does Probate Take?
How long a probate will take depends on several factors. Some of those factors include the number and type of assets involved, the speed of the clerk of court in processing legal pleadings, the volume of cases in the courts, the responsiveness of the financial institutions involved, and whether there are disputes between the heirs.
If an estate is relatively debt-free, and there is no conflict between the heirs, the succession process can be completed within a matter of one to two months. Otherwise, successions can take several months (or even longer) to complete, depending on the issues involved. When complexities or disputes arise, it is imperative that there is an experienced succession attorney with to manage the process efficiently.
How Much Does Probate Cost?
There are 3 sets of fees: Attorney Fees, Court Costs, and Executor Fees. Attorney fees will vary depending on the complexity of the case, but you can expect to pay a minimum of $3,500 for simpler case, and more if the case requires litigation. Court costs are generally between $500 to $1000. And the executor is entitled to 2.5% of the estate. Additional costs may include accountant’s fees, appraisal fees, title search fees, and recording fees, depending on the types of assets in the estate.
If there are disputes involved, the attorney’s fees and court costs will likely be more significant. However, it is important to note that the attorney’s fees of a succession representative are almost always paid out of or reimbursed out of the succession assets. This makes it extremely advantageous to be appointed as succession representative as soon as possible, especially when the succession involves disputes so that you don’t have to pay your own attorney fees even though you are the decider of what occurs within the succession. Typically, the first qualified heir to petition the court will be appointed as succession representative. If you are involved in a situation where you expect a dispute, it’s critical to get appointed early.
What if there’s a Dispute Regarding the Estate?
If you’re involved in a probate or succession dispute, it’s important to seek legal advice from a Louisiana licensed attorney who can help you protect your interests and guide you through the process.
We understand that succession disputes are never just about the assets. These disputes can get very emotional. Our compassionate and highly skilled probate attorneys can help you navigate the situation so that you get the best results. We will help you negotiate with the other parties involved to reach a positive resolution. But if necessary to protect your rights, we will pursue litigation on your behalf. Some of the types of cases we can help with include:
- Breach of fiduciary duty by succession representatives or parties holding power of attorney prior to the decedent’s death
- Lack of capacity
- Will Contests
- Trust Litigation
- Proving or challenging the legitimacy of a will
- Undue influence on the decedent when the will was prepared
- Malfeasance on the part of the executor
- Will and trust fraud
- Confirming or disputing who the heirs are in a Louisiana succession
- Disputes regarding Powers of Attorney
- Verifying or disputing what each heir is entitled to receive
- Authorizing or disputing the actions of a succession representative
- Validating or disputing the expenses used by a succession representative
- Interdiction and conservatorship litigation
- Estate litigation involving family owned businesses
Our attorneys have the experience to handle your case. We represent heirs, succession representatives, or anyone who is trying to be recognized as an heir or succession representative.
Getting Help- How to Choose the Right Attorney for Your Succession Case
The best way to ensure your probate is done right is to choose your attorney wisely. Do not assume that all attorneys are the same! Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate as a sideline because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.
You don’t have to use the attorney who prepared the Will either! Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your probate or trust lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.
Contact Progeny Law Firm for a Post-Death Estate Review
If you’re ready to get started with the probate process after the passing of a loved one, please contact our experienced East Baton Rouge probate attorneys at 225-465-1090 or use this link to schedule a succession consultation to help determine your next best steps. We are here in service to making this all as easy as possible on you.
During this appointment, we will review your case, answer all of your questions about probate and guide you and your family through the next best steps. We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible, and look forward to relieving any administrative or legal burdens you may face during this time of loss.