When an estate goes through an administration, a succession representative must be appointed by the Court. When you draft your will, you should name a succession representative and a successor if the first is unable or unwilling to serve. You maintain control over this decision rather than the Court. In many cases, the surviving spouse is named the estate’s succession representative or executor. If there is no surviving spouse or if the surviving spouse is unwilling or unable to serve as the succession representative, the testator (the person drafting the will) typically relies on the children to act in this capacity. Often the eldest child is named succession representative; however, it is prudent to select someone who will best handle the duties of a succession representative.
Each testator must consider their estate’s complexity when naming a succession representative. In addition, how close in proximity the children live to the testator is a consideration. If the estate is complex and will require an administration, a prudent choice is to select a succession representative who is more comfortable with handling personal, business and financial affairs. Finally, the succession representative must have sufficient time to devote to the duties inherent of a succession representative. Keep in mind that the succession representative does not have to be familiar with financial or legal jargon. The succession attorney will advise and guide the succession representative throughout the succession process. As a practical matter, the succession representative takes few actions without the succession attorney’s counsel.
Duties of the Succession Representative
The succession representative is typically the person who contacts the attorney to start the succession process (opening the succession). One task of the succession representative will be to gather the information of the estate’s assets that is used by the attorney to prepare the descriptive list. When the succession representative is appointed, he or she is regarded as a fiduciary with the duty of collecting, preserving and managing the succession property. The succession representative must act as a prudent administrator and is personally responsible for damages resulting for failing to act as such. Furthermore, the succession representative has possession of all succession property and must preserve, maintain and protect that property. If necessary, the succession representative may sell succession property after petitioning the court for authority to sell the property. If real estate is being sold, notice of the sale must be published in the parish where the succession proceeding is pending. If real estate is located outside of the parish of the succession proceeding, notice must also be published in the parish where the property is located. An independent administration eliminates the publishing and court order requirement and reduces much of the “red tape” of a standard administration.
Independent Administrations
In an effort to streamline the succession process, Louisiana allows the independent administration of successions. As a testator, you may choose to have the succession
representative serve as an independent administrator by stating in your will that the succession representative will serve as an independent administrator.
An independent administrator has all of a standard succession representative’s powers and rights but without the requirement of petitioning the court or the requirement of publishing notices for the sale of succession property. Providing for an independent administration can greatly streamline the succession process by allowing the independent administrator to act without court authority. Moreover, an independent administration can reduce the cost of a succession by reducing the need to file petitions with the court to take certain actions.
If the will does not provide for an independent administrator or if the independent administrator named in the will is unwilling or unable to serve, all of the general or universal legatees may collectively agree to designate an independent administrator. Furthermore, if a decedent dies intestate, all of the intestate heirs may agree to select someone to serve as an independent administrator.
Although independent administration streamlines probate, the reduction of court supervision may cause some concern to testators or other interested parties. For that reason, you may specifically prohibit an independent administration. In addition, any interested party may request that the independent administrator post a bond or furnish other security. The court may order that adequate security be furnished if it is deemed necessary. Furthermore, the annual accountings are not required for an independent administration; however, any interested party may demand an annual accounting. A final accounting by the independent administrator is required unless it is waived by the heirs and legatees.
If you are an executor or an administrator of an estate and have questions about your responsibilities or about opening a succession, contact John E. Sirois at 985-580-2520 today.
