Settling Small Estates (LA)

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:

1. Create a Small Succession Affidavit (see below)
2. 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
3. Collect estate assets by presenting the affidavit to current custodians of estate property
4. Settle the estate in the normal manner: resolve any estate obligations and distribute remaining assets to heirs
5. 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.

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.