Heir Rights (LA)
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As an heir, you likely have questions about the inheritance process in LA, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under LA Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, LA estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- LA Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see LA Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See LA Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
LA Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Louisiana, small estates can completely bypass probate via small succession affidavit, or simplify it via unadministered succession. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Succession Definition
Louisiana defines a "small" succession as an estate whose gross value is <$125,000.
In calculating succession value, you should value assets as of the date of death, subtracting the amounts of any associated liens or encumbrances, but ignoring any unsecured debts. Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Small Succession Affidavit
Requirements
A Louisiana estate can use the Small Succession Affidavit process and bypass court entirely if:
- The estate qualifies as "small" as per above
- There is no will, or there is a will but there is no real estate and the terms of the will would result in the same distributions as if there had been no will, or there is a will but the decedent lived out of state and the will was probated there
- The sole heirs are the decedent's descendants, ascendants, siblings, descendants of siblings, and/or a surviving spouse (can also include anyone named in the will if probated in another state)
- At least 28 days must have passed since the death
- An application for appointment of personal representative has not been made
Process
To use the small succession affidavit process:
- Create a Small Succession Affidavit (see below)
- Mail a notice to any heirs not signing the affidavit, informing them you intend to execute an affidavit of small succession, and stating they have up to 10 days to object
- Collect estate assets by presenting the affidavit to current custodians of estate property
- Settle the estate in the normal manner: resolve any estate obligations and distribute remaining assets to heirs
- To transfer title of a vehicle, you must also file an OMV Affidavit of Heirship with the OMV
This process appears easy and straightforward, and it can be, but while current holders of estate property are allowed to honor a small estate affidavit, they are not required to, and some institutions may insist on a court order.
Affidavit
You can create an affidavit by filling out an Affidavit of Small Succession from the OpenDocs project (this form is a bit dated, and if necessary you may want to update it to reflect the current estate limit of $125,000.
You can also create your own affidavit from scratch. By law, an affidavit of small succession must include:
- The decedent's date of death and official residence
- The fact that the decedent died without a will (unless the will is being probated in another state)
- The marital status of the decedent, and name and address of any surviving spouse
- The name, relationship, and last known address of each hier
- A statement that any heir not signing the affidavit either could not be located after a reasonably diligent search, or was given 10 days notice by U.S. mail of the intent to execute an affidavit for small succession and did not object
- A description of the property left by the deceased, each item's individual value, whether it was community property or separate, and the aggregate value of the entire estate
- The percent interest each heir has in the succession, and whether a legal usufruct (the right to use and collect any income from the asset) of the surviving spouse attaches to the property
- An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased
- An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct and complete to the best of their knowledge, information, and belief.
Each signature on the affidavit must be notarized. The affidavit must be signed by the surviving spouse and at least one major heir. If no surviving spouse exists, the affidavit must be signed by at least 2 heirs. If only 1 heir exists, the affidavit must be signed by a second person who has actual knowledge of the situation.
See LA Code Civ Pro § 3421 et seq.
Unadministered Succession
If you cannot or do not want to use a Small Succession Affidavit, the next simplest approach is to settle the estate via an unadministered succession, in which you file certain documents with the court to obtain a Judgment of Possession, transferring title to the decedent’s assets.
Requirements
In general, a Louisiana estate can be settled via an unadministered succession if all the inheritors agree to do so.
If the decedent left a will, it is also required that no estate creditor has demanded an administration (see LA Code Civ Pro 3031).
If the decedent died intestate (i.e., with no will), then the estate must have no debts other than expenses of estate administration, mortgages that are paid current, and other debts that are small in comparison with the assets of the succession (see LA Code Civ Pro 3001).
It is not actually required for the estate to qualify as "small" to use this process, but if it does, court fees are cut in half and an executor can charge a fee no greater than 5% of the gross succession assets.
Process
To proceed with unadministered succession:
- Submit to the court a Petition for Probate, along with an Affidavit of Death, Jurisdiction, and Heirship, a Sworn Detailed Descriptive List, and a Petition for Possession (see LA Forms).
- The court will order a Judgment of Possession, legally transferring ownership of the assets
- Collect estate assets by presenting the Judgment to current custodians of estate property
- Settle the estate in the normal manner: resolve any estate obligations and distribute remaining assets to heirs
Under this process, if an executor wants to sell estate assets, he or she must publish notice in a newspaper of general circulation in the parish where the succession was opened. The property must be sold in at least 10, but not more than 15, days from the date of publication. Special publication requirements apply.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in LA, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in LA, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow LA probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Court
In Louisiana, the local District Court handles wills and estate succession.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the LA estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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