What Happens in the Louisiana Probate Process?
And should I avoid it, if possible?
on December 19, 2019
Updated on April 29, 2022
As a former territory of France, the state of Louisiana has a different history than much of the rest of the country. The state’s history still has a major impact on day-to-day life—Louisiana is the only jurisdiction in the United States that uses a civil law system instead of the common law system.
One of the many effects of this is that the state’s probate process is unique. To start, Louisiana law does not technically use the term ‘probate’, at least not officially. Instead, probate is simply referred to as ‘Succession’—and it is the legal process by which a person’s estate is settled and their property is distributed.
Louisiana Successions: Two types of probate
As explained by the Louisiana Governor’s Office of Elderly Affairs, most estates are resolved in one of two ways: succession without administration or succession with full administration.
An unadministered succession is a simplified form of the succession process. It means that no executor is needed to settle the estate of decedent. “Say you’ve got an intact family, kids, a house and a bank account. There’s no reason to administer that,” says M. Janice Villarrubia, an estate planning and probate attorney in Baton Rouge. There are certain standards that must be satisfied for an estate to be settled without administration.
In contrast, administered succession is a more complex process that involves a Louisiana court appointing an official representative to resolve the estate’s outstanding debts and distribute property. “If you have administration, sometimes it’s cumbersome; you may have to pay bills or you may have to liquidate assets, you know that you have a business that’s ongoing,” Villarrubia explains.
Administered succession can be divided into formal and independent administration. Formal administration requires specific actions for every action taken on the estate. “For the executor to pay bills, they have to draft a pleading. They have to advertise it in the paper. Then they have to go to the court and they say ‘Nobody’s objected to this? Yes, now you can pay the electrical bill,’” Villarrubia says. Formal administration is both expensive and cumbersome.
Independent administration affords all the same safeguards that prevent executors from stealing, self-dealing or giving part of the estate away. But it also allows the executor more freedom to pay bills or liquidate stock. What even many lawyers don’t know, however, is that independent administration must be authorized.
An Alternative to Probate
If you are like most people, you do not want your estate to be settled by a court. To the maximum extent possible, you likely want to leave assets and property to your selected heirs in the most efficient and effective manner possible. Beyond that, you do not want to leave your loved ones with unanswered questions or unclear instructions, as doing so can easily lead to a serious dispute.
However, avoiding probate isn’t always the best approach. “Probate is not very onerous,” Villarrubia says. “Because when a person dies, who’s there to make sure their heirs get their estate? Does somebody come in and say they’re a wife or they’re a child or whoever? The word ‘probate’ means ‘to prove.’ And so if you have a will, you go through probate.”
Probate—specifically, formal administered succession—can often prove to be a long and frustrating process. As it is court supervised, there are many complex rules and procedures that must be followed before assets can be distributed. Another issue is that these court proceedings are part of the public record. This means that you lose your ability to keep much of your estate private.
The primary tool families can use when they wish to avoid probate is to set up a trust. A trust may be a better option if you want to establish a chain of succession, if someone receiving benefits has special needs, or if you want to protect the privacy of the estate or a business owned by the estate.
Some Laws are Unique to Louisiana
Louisiana’s civil code include some “really beautiful laws that are unique to Louisiana,” Villarrubia says. One is forced heirship, which requires a portion of an estate to go to an heir who is under the age of 24 or who is mentally or physically incapable of caring for themselves. “If they’re 50 years old and they’re healthy, you don’t have to leave them a nickel. But if they’re 50 years old and they’re ill, you do,” Villarrubia says.
Louisiana is a community property state. Married people should keep this fact in mind, as the state’s community property laws can have an effect on estate planning. The marital portion law requires something to be left to the surviving spouse. “When a rich man marries someone who is not rich and they have lived this lifestyle and he dies and doesn’t leave her anything, the law says you’re not going to do that,” Villarrubia says. “You’re not going to just take a woman. It’s usually a woman. It could be a man. So you have to leave a part of your estate to her.”
A Lawyer can Help Navigate the Process
While some of the state’s probate process is immediately complicated, some aspects can appear relatively simple. Even so, it’s important to have a lawyer ready to help. “It’s not important, it’s essential,” says Villarrubia.
An experienced Louisiana estate planning lawyer can help at every stage of the process, from making sure your valid will—even your handwritten last will and testament—is drafted correctly and is valid, to investigating things that seem potentially problematic. “It’s just that extra layer of protection.”
A compassionate lawyer can help you look out for your family in other ways. “If you’re a parent, are you setting [your children] up for success? Are you doing something that’s going to cause your children to fight?” Villarrubia says. “I will tell [families] a lot of times, ‘I’m far less concerned about your estate than I am you. Who’s going to take care of you?’”