General DefinitionA decedent's intestate estate is, In the absence of valid testamentary disposition, the undisposed property of the deceased. C.C., Art. 880.
Order of DistributionIf the deceased leaves no descendants, the surviving spouse succeeds to the decedent's share of the community property. C.C., Art. 889. If the deceased is survived by spouse and descendants, the surviving spouse will have a right to the decedent's share of the community property to the extent that the decedent has not disposed of it by will or trust. This right terminates when the surviving spouse dies or remarries, whichever occurs first. C.C., Art. 890. If the deceased leaves neither descendants, nor parents, nor brothers, sisters, or descendants from them, the surviving spouse succeeds to the separate property. C.C., Art. 894.
If the deceased leaves no descendants but is survived by a parent or parents and by a sibling or siblings or descendants from them, the siblings or their descendants succeed to the separate property of the deceased subject to a right in favor of the surviving parent or parents. If both parents survive the deceased, the right is joint and successive. C.C.P., Art. 891.
If the deceased leaves neither descendants nor parents, siblings or descendants from them succeed to the deceased's separate property in full ownership. If the deceased leaves neither descendants nor siblings, nor descendants from them, the parent(s) of the deceased succeed to the separate property. C.C, Art. 892.
If a deceased leaves neither descendants, nor siblings or descendants from them, nor parents, nor spouse then other ascendants succeed to the separate property. If the ascendants in the paternal and maternal lines are in the same degree, the property is divided into two equal shares, one of which goes to the ascendants on the paternal side, and the other to the ascendants on the maternal side, whether the number of ascendants on each side be equal or not. C.C., Art. 895.
In default of blood, adopted relations, or a spouse, the estate of the deceased belongs to the state. C.C., Art. 902.
The heirs of an intestate decedent will be recognized by the court and sent into possession of the estate property without administration of the succession, on the petition of all of the heirs and the succession is relatively free of debt. The surviving spouse is entitled to the possession of an undivided half of the community, and of the other undivided half to the extent that he has the usufruct thereof, without an administration of the succession. C.C.P., Art. 3001.
Common Law or Community PropertyLouisiana is a community property, civil code state. Louisiana is unique among the 50 states in that much of its code is based on civil (French law) rather than English common law.
CapacityAny person, who is at least 16 years of age, may dispose of any or all of his or her property by will. CC. Art. 1476. The testator must also understand the nature and consequences of the disposition of assets. CC. Art. 1477.
DraftingLouisiana has two forms of valid wills: Holographic and Notarial.
A holographic will is one entirely written, dated and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign at the end of the document. If anything is written by the testator after his signature, that provision is invalid. C.C., Art. 1575.
A notarial will is one that is in writing and dated. The will must be signed at the end of the document and on the bottom of each page in the presence of a notary and two competent witnesses. The testator must inform the notary and witnesses that the instrument is his or her will. The testator, witnesses and notary must sign in the presence of one another. C.C., Art. 1577.
A person cannot be a witness to a will if he or she is insane, blind, under the age of sixteen or unable to sign his or her name. A person who is competent but deaf or unable to read cannot be a witness to a notarial testament where the testator is illiterate. C.C., Art. 1581. In addition, the spouse of a legatee may not be a witness to the will. The fact that a witness is the spouse of a legatee does not invalidate the testament; however, a legacy to a witness' spouse is invalid, if the witness is the spouse of the legatee at the time of the execution of the testament. The testator, witnesses and notary must sign in the presence of one another. C.C., Art. 1582.1.
Heirs and LegateesAn "heir" includes those who are entitled to receive assets under the laws of intestate succession.
A "legatee" is a person entitled to receive assets of the estate under the terms of the decedents will.
ModificationsComplete revocation of a will occurs when the testator destroys the document, uses an established legal form to revoke it or creates a new testament. C.C., Art. 1607.
Revocation of a legacy or other testamentary provision occurs when the testator:
- Declares in one of the forms prescribed for testaments.
- Makes a subsequent incompatible testamentary disposition.
- Makes a subsequent inter vivos disposition of the thing that is the object of the legacy and does not reacquire it.
- Clearly revokes the provision or legacy by a signed writing on the will itself.
- Is divorced from the legatee after the will is executed and at the time of death. C.C., Art 1608.
Naming of Personal RepresentativeIn Louisiana, a "Personal representative" means an executor, administrator, or representative of a decedent's estate or a person legally authorized to perform substantially the same functions. Title 9, Sec. 751.
When the appointment as administrator is claimed by more than one qualified person, preference is given by the court in the following order:
- The best qualified among the surviving spouse, competent heirs or legatees, or the legal representatives of any incompetent heirs or legatees of the deceased.
- The best qualified of the nominees of the surviving spouse, of the competent heirs or legatees or of the legal representatives of any incompetent heirs or legatees of the deceased.
- The best qualified of the creditors of the deceased or a creditor of the estate of the deceased or a co-owner of immovable property with the deceased.
"Best qualified" means the best qualified personally and by training and experience, to administer the succession. C.C.P., Art. 3098.
Admission to ProbateIf the deceased left a will, any person with an interest in opening the succession may petition a court of competent jurisdiction for the probate and execution of the testament. C.C.P., Art. 2851.
The petitioner must submit evidence of the death of the decedent and of all other facts necessary to establish the jurisdiction of the court. If the testament is one other than a statutory testament, a notarial testament, or a nuncupative testament by public act, and is in the possession of the petitioner it must be presented to the court. C.C.P., Art. 2852
Unless the person named in the testament as executor is disqualified on any grounds, the court will confirm him or her as testamentary executor and direct the issuance of letters testamentary to him or her after he or she has taken the oath of office and furnished security, if required. C.C.P., Art. 3082.
Letters, issued in the name and under the seal of the court, evidence the confirmation or appointment of the succession representative, his or her qualification and compliance with all requirements of law. C.C.P., Art. 3159.
Submission of WillIf a person has possession of a document purporting to be the testament of a deceased person, even though the holder believes that the document is not the valid or has doubts concerning its validity, he or she must present it to the court with a petition requesting that the document be filed in the record of the succession proceeding. C.C.P., Art. 2853.
When a testament has been produced, the court will order it presented for probate on a particular date. If all necessary witnesses are present in court at the time the testament is produced, the court may order it presented for probate. C.C.P., Art. 2856.
In order to be admitted to probate, the testament of the decedent must be offered to the court within five years of the testator's death. C.C.P., Art. 2893.
NotificationsWhen an application is made for an order of succession, notice of the application must be published once in the parish where the succession proceeding is pending. C.C.P., Art. 3229.
A copy of any account filed by the representative must be provided to each heir or residuary legatee, together with a notice that the account may be approved after ten days from the date of service and that any opposition must be filed before then. C.C.P., Art. 3335.
InventoryIf no inventory of the property left by the deceased has been taken, any heir, legatee, or other interested party may file in the succession proceeding a detailed, descriptive list, sworn to and subscribed of all items of property stating the value of each item at the time of death. C.C.P., Art. 2952.
Forced Share and UsufructLouisiana is a community property state with a forced share statute. In Louisiana, a decedent must leave no less than ¼ of his or her estate to a forced heir and no less than ½ if two or more forced heirs survive the decedent. C.C., Art. 1495. "Forced heirs" are any surviving children or representatives of deceased children under the age of 24 or children or representatives of children of any age that suffer from mental incapacity or physical infirmity and are permanently incapable of taking care of themselves or administering their estates at the time of the death of the decedent. C.C., Art. 1493.
A decedent may grant his or her surviving spouse a right of usufruct. This right allows the surviving spouse to retain the beneficial enjoyment of real and personal property during life. Usufruct can be granted regardless of the survival of forced heirs. C.C., Art. 1499.
A forced heir may request security when a usufruct in favor of a surviving spouse affects his legitime and he is not a child of the surviving spouse. A forced heir may also request security to the extent that the usufruct over the legitime affects separate property. The court may order the execution of notes or mortgages or may impose a mortgage or lien on either community or separate property as security. C.C., Art. 1514.
Debts and DistributionsThe charges against an estate in succession, such as funeral charges, law charges, lawyer fees for settling the succession, amounts secured to the surviving spouse or minor heirs of the deceased and all claims against the succession originating after the death of the person whose succession is under administration, are to be paid before the debts contracted by the deceased person. C.C., Art. 3276.
Universal successors are liable to creditors for the payment of the debts of a decedent's estate in proportion to the amount which each is entitled to. However, a universal successor is liable only to the extent of the value of the property received. C.C., Art. 1416.
If there is not enough left in the estate after the payment of the debts and to discharge all particular legacies, the legacies of specific things are discharged first and then the legacies of groups and collections of things. Any remaining property must be applied toward the discharge of legacies of money, to be divided among the legatees of money in proportion to the amounts of their interests. When a legacy of money is expressly declared to be paid for services rendered, it will be paid in preference to all other legacies of money. C.C., Art. 1601.
Louisiana repealed its inheritance tax for estates passing by death after June 30, 2004. R.S.47:2426.
Income Tax Charitable Deductions and/or Credits
Louisiana allows a taxpaying resident to deduct amounts contributed to or for the use of the following:
- The State of Louisiana, or a political subdivision thereof, for exclusively public purposes.
- An organization created and operated exclusively for religious, charitable, scientific, literary or education purposes.
- Organizations operated for the prevention of cruelty to children or animals, fraternal lodges or associations and authorized vocational rehabilitation funds.
- The special funds for vocational rehabilitation authorized by Section 11 of the World War Veterans' Act, 1924.
- Posts or organizations of war veterans, or auxiliary units or societies of any such posts or organizations, if such posts, organizations, units, or societies are organized in the United States or any of its possessions, and if no part of their net earnings inures to the benefit of any private shareholder or individual. R.S.47:57.
Louisiana allows for a charitable income tax credit for contributions made to educational institutions. RS 47:37. A tax credit is available for donations made to assist playgrounds in economically depressed areas. RS 47:6008. Also, employers receive a tax credit for donations of materials, equipment, advisors or instructors. RS 47:6012. Finally, taxpayers may receive a tax credit for donations made to public schools. RS 47:6013.
Gift Annuity Requirements
Louisiana, a "conditional exemption" state, regulates the issuance of charitable gift annuities under Sec. 22:951(D).