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Estate Planning, Probate, and Elder Law

Glossary of Terms

Administrative Expenses – Obligations incurred in the collection, preservation, management and distribution of the decedent’s estate.

Administrator – See Succession Representative.

Community Property – Property acquired during the legal regime of community of acquets and gains. Generally it is property acquired by either spouse during marriage and it is owned in common by husband and wife each having an undivided one-half interest by reason of their marital status.

Debts of the decedent – Obligations of the decedent or obligations that arise as a result of the decedent’s death, such as funeral and burial expenses.

Decedent- The person who died.

Disposable Portion – The portion of property that the donor or testator may donate inter-vivos or mortis causa without regard to the rights of forced heirs.

Domicile - The parish in which the decedent permanently resided at the time of his death. If the decedent was temporarily residing in another parish at the time of his death his domicile will remain in the last parish in which he permanently resided. You may have multiple residences, but you may have only one domicile.

Estate – the property, rights and obligations that a person leaves at their death. An estate also includes all property and rights that have accrued since death.

Estate Debts – Debts of the decedent and administrative expenses.

Executor/Executrix – See Succession Representative.

Fiduciary - A person who owes a duty to another to protect that person's interest. A fiduciary has the obligation to place the interest of that other person above his or her own interest. An executor or administrator of an estate is a fiduciary.

Forced Heirs – Those descendants to whom Louisiana law reserves a portion of the estate. The testator cannot dispose of the forced portion to the prejudice of the forced heirs. The forced portion is also called the legitime. Louisiana law requires the testator to leave at least the forced portion to the forced heirs. Under current law, forced heirs are children of the decedent who have not yet reached their 24th birthday when their parent dies, and children of the decedent who, because of mental incapacity or physical infirmity, will be permanently unable to take care of themselves or administering their estates. The forced portion is one-fourth if there is one forced heir. If there are two or more forced heirs, the forced portion which must be left to those heirs is one-half of the decedent’s estate. However, the forced portion cannot amount to more than that heir would inherit in an intestate succession.

Forced Portion – The portion of which the testator is forbidden to leave to another person to the prejudice of the forced heirs.

Heir - A person who inherits from another person who died intestate.

Homologated – The court approval of a request by the succession representative to perform certain functions as the succession representative.

Inter-Vivos Donation - An irrevocable donation made during the lifetime of the donor.

Intestate - When a person dies without having a valid testament at the time of death. A person can die intestate if his or her testament was declared invalid by a court.

Judgment of Possession – A judgment of the court recognizing the heirs or legatees as owners and entitled to be sent into possession of the estate of the decedent. The judgment is recorded in the conveyance records of the parishes where immovable property is located to transfer property title to the heirs or legatees. The judgment may also be presented to financial institutions and others holding property of the decedent for delivery to the heirs or legatees as provided in the judgment.

Legatee - A person who inherits under the terms of a testament (will).

Legitime – the forced portion.

Mortis Causa Donation – A revocable donation to take effect upon the death of the donor. Typically transfers in a testament (will).

Naked Owner – The owner of property subject to a usufruct.

Notarial Testament – One of the two types of testaments recognized in Louisiana. See Testament.

Olographic Testament – One of the two types of testaments recognized in Louisiana. See Testament.

Probate – The court procedure to prove a will is valid or invalid. It is also the term commonly used to refer to the entire succession process and administration of the decedent’s estate.

Renunciation - The disclaimer of all or part of a succession whereby the person renouncing declines to accept all or a portion of his inheritance. The portion renounced will be inherited by those who would have inherited if the renouncing party had predeceased the decedent.

Representation –Representation allows the representative to “step into the shoes” of the person who predeceased the decedent. The effect of which is to put the representative in the place, degree and rights of the person represented. Representation occurs in the direct line of descendants (e.g. grandchildren step into the parent’s shoes if the parent predeceased the grandparent). Representation also occurs in the collateral line only in favor of the children of brothers and sisters of the deceased.

Separate Property – Property owned exclusively by a spouse or unmarried person. Property inherited by or donated solely to one spouse is separate property.

Succession – The transmission of the estate of the decedent to his or her successors (the heirs or legatees). It is also the process of transferring a decedent’s estate to the successors.

Succession representative – The generic term for an executor or administrator. The succession representative is the person appointed by a judge who is responsible for collecting and preserving the succession assets. A succession representative may also be appointed in a will and confirmed by a judge. With the guidance of his or her attorney the succession representative assesses the estate debts and ensures that valid debts are paid. If the decedent died testate, the succession representative will be called the executor or executrix (if of the feminine gender). If the decedent died intestate, the succession representative is called the administrator or administratrix (if of the feminine gender).

Testament – Formal name for a last will and testament. Louisiana recognizes notarial testaments and olographic testaments. The notarial testament must follow certain formalities and is generally prepared by an attorney. It is executed in the presence of a notary and two witnesses. An olographic wiIl is entirely handwritten, dated and signed by the testator. It need not be witnessed or notarized.

Testate - When a person dies with a valid testament at the time of his death.

Testator - The person who executes a testament.

Tutor – The guardian of a minor child and administrator of his or her property after the dissolution of the marriage of his or her parents, by death or divorce, or the separation from bed and board of one of them from the other. The surviving parent may appoint a tutor for a minor child in their will or by written declaration, executed before a notary and two witnesses.

Usufruct – A type of personal servitude by which one person has the right to use property and to receive the things that property produces. The things it produces are call its fruits. The fruits are revenues (e.g. rents and royalties) and natural fruits. The naked owner has the ownership of the property subject to the usufruct. The person who holds the usufruct is called the usufructuary.