Successions/Wills/Powers of Attorney/Living Wills/Elder Law/Rights

Julius P. Hebert Jr. and Brian J. Marceaux - Wednesday, May 27, 2015

Under Louisiana law, a succession is the transmission of a deceased person’s property to others upon the death of that person. If one dies without a Will, the succession is known as “Intestate.” If one dies with a Will, the succession is known as “Testate.”

If one does not have a Will, Louisiana law provides who will inherit the deceased person’s property. In other words, the law determines how the deceased person’s property will be distributed. But if you want to distribute your property different from the law, you need a Will. A Will can be written where it allows the deceased person to decide how his/her property is going to be distributed. This is not without certain conditions.

Questions often arise about what occurs to property co-owned by a deceased person and his/her spouse, known as community property, as well as the deceased spouse’s separate property, if any. There is a law known as “usufruct” and it is a succession-related issue and an estate planning tool.

A Power of Attorney is a mandate of authority by a principal over the principal’s affairs to an agent. In other words, the agent has authority to act on the principal’s behalf.

Be careful with powers of attorney and who and what you authorize. When one gives a power of attorney, you are giving authority to another person known as the agent. Unless drafted with appropriate covenants, the power of attorney becomes effective immediately. To stop the immediate effectiveness Louisiana law allows a power of attorney to be set up conditionally. In turn, the power of attorney does not become effective until the Principal becomes incapable of managing his or her own affairs. Be careful to whom, for what, and how much authority you grant to an agent.

Confusion exists sometimes between a Will and a Living Will. A Living Will is different from a Will. A Living Will allows you to make pre-determined health care related decisions. It is different from a “Will” that gives your property to others.

What happens upon death? Upon death the law provides that a written succession must be opened for the deceased person (in the majority of cases). A succession is still necessary if one has a Will. If there is a Will, it must be presented to and accepted by the Court. The property then is distributed according to the Will. If there is no Will, it is distributed according to law. However, liabilities/debts and estate expenses are part of the succession. Some successions do not require administration while others do. An inventory or Sworn Detailed Descriptive List of the deceased person’s property and liabilities at time of death must be prepared. Louisiana does not have inheritance taxes. However, on estates over a certain amount, Federal estate taxes may be owed. Common succession terms are heir(s), legatee(s), intestate, testate, administrator, executor, probate, usufruct, donation, collection, reduction, forced heirship, estate taxes, and property.

The ultimate objective is to have the court render a written judgment and place the accepting heirs/legatees in possession and ownership of the deceased person’s property, subject to payment of debts and expenses.

At Hebert & Marceaux, you can consult us to plan your estate and/or to handle the deceased person’s succession. Common estate planning tools include powers of attorney, living Wills, Wills, or no Wills. If you have any questions on Successions, Wills, Estate Planning, Trusts, Powers of Attorney, or Living Wills, please contact Hebert & Marceaux for an appointment by calling (985) 876-4324.

This is for information only and not legal advice. An attorney should be consulted on a particular case or situation.