A succession (probate) is required when there is no other method to transfer a deceased person’s assets to their heirs. Although the heirs may be the “owner” of the decedent’s assets, a succession is required to formally transfer the ownership and re-title the assets in the name of the heirs. Other methods to transfer assets to the heirs include beneficiary designations on IRAs, 401(k)s, 403(b)s, 457 plans, payable on death accounts and trusts. These beneficiary designated assets do not go through probate and are not controlled by the will or intestacy laws. Assets titled joint tenancy with rights of survivorship automatically transfer property to the surviving owner. Joint tenancy with rights of survivorship is used to bypass probate in other states, however, it is not recognized in Louisiana. If someone who owns real estate in Louisiana dies while domiciled in another state, a succession will have to be opened to transfer the Louisiana property to the heirs.
A succession is required regardless if someone dies testate (with a will) or intestate (without a will), unless all of the assets can be transferred by other methods. The typical method to avoid probate for non-beneficiary designated assets is by establishing a revocable trust (aka living trust). All of the assets in the name of the trust pass directly to the trust beneficiaries without going through probate.
Beneficiary-designated accounts, such as IRAs, 401(k)s, annuities, life insurance, etc. will go directly to the named beneficiary(ies) on the account. The beneficiary submits a certified death certificate and a beneficiary claim form to have these assets re-titled into their name. Bank and credit union accounts may also be transferred by beneficiary designation by establishing a POD (payable on death) or TOD (transfer on death) account.
All other assets in the decedent’s name will most likely have to go through probate. After death, no party, other than the court appointed executor, has access to the decedent’s assets. Assets in the decedent’s name become unavailable to anyone after death until the succession is opened. The court will appoint an executor who has authority to access all of the decedent’s assets and administer the estate. At the end of the estate administration, the court will authorize the transfer of the decedent’s assets to the estate heirs.
A succession also provides a mechanism for creditors of the decedent or the estate to enforce their right to be paid. An heir is only responsible for debts of the decedent or the estate up to the amount of their inheritance. Thus, if an heir inherits $100,000 but the decedent owed creditors $200,000, the heir is only responsible for $100,000 of the debt.
If you have questions about opening a succession or need to open a succession in Louisiana, contact John Sirois at 985-580-2520 or by email at .
