FAQ: MY PARENT DIED. DO WE ACTUALLY HAVE TO OPEN A SUCCESSION?

Someone dies. Everybody is grieving. Nobody really wants to talk about deeds, bank accounts, vehicle titles, mortgage statements, or who technically owns the lawn mower now. Then somebody finds the will.

And for about six glorious minutes, everyone thinks the problem has been solved.

“Mama had a will.”

Wonderful. I am genuinely glad Mama had a will.

Unfortunately, the will does not sprout little legal legs, walk itself down to the courthouse, transfer the house, change the vehicle title, close the bank account, divide the property, and come home in time for supper.

That would be an excellent system.

Louisiana did not choose that system.

So one of the questions I hear all the time is some version of: My parent died. They had a will. Do we actually have to open a succession?

And because I am a lawyer, I am required by some unwritten oath to begin with the most irritating answer available:

It depends.

But I can at least explain what it depends on.

First, a succession is basically Louisiana’s version of probate. We cannot just call it probate because apparently we enjoy having our own words for things. It is the legal process of sorting out what a person owned when they died, who is legally entitled to it, what debts or obligations may have to be addressed, and ultimately getting the property where it is supposed to go.

And that last part is the one people tend to underestimate.

A will can tell me exactly what Mama wanted. Maybe Mama left the house equally to her three children. Maybe everybody agrees. Nobody is fighting. Nobody is threatening to burn the will in the backyard. Nobody has hired Cousin Earl’s friend who “knows a little law.”

Excellent.

Mama is still the person whose name is sitting in the conveyance records as owner of that house.

The courthouse does not care that all three children know what Mama wanted. A future buyer does not want a handwritten family agreement explaining that everybody is cool with it. A title company does not insure property based on the universally respected legal doctrine of “Daddy told us what he wanted at Thanksgiving.”

At some point, if that property is going to be sold, mortgaged, divided, donated, refinanced, or otherwise dealt with, somebody usually has to establish who legally inherited it.

That is one of the things a Judgment of Possession does. It recognizes the appropriate heirs or legatees and places them into possession of the property belonging to the deceased.

Which is why, when someone walks into my office, puts a will on my desk, and says, “We shouldn't need a succession because she had this,” the will is usually not the first thing I am worried about.

I want to know what she owned.

Did she own a house? Land? Mineral rights? A bank account? A vehicle? Investment accounts? An interest in a family business? Property she inherited from her parents? Half of something everybody has forgotten was ever put in her name?

Because death has an astonishing talent for uncovering property nobody has discussed since 1987.

I have seen families who believed an estate was incredibly simple discover that there was land still titled in somebody's name from two generations ago. Then you start drawing the family tree.

And sometimes it is a tree.

Sometimes it looks like the back of a DirecTV receiver after the children have been left unsupervised.

That is why two people can both call my office and say, “My mother died and she had a will,” and one situation may be fairly simple while the other requires me to get out paper, a pen, several courthouse records, and possibly more coffee.

The existence of a will is important, but it is not the entire story.

There is also a surprisingly common misconception that if someone dies without a will, the State of Louisiana gets everything.

No.

Louisiana has enough going on. It is not lurking outside your grandmother’s house waiting to seize her china cabinet because she forgot to execute a testament.

When someone dies without a valid will, Louisiana law already provides rules determining who inherits. That is called an intestate succession.

The problem is that Louisiana's plan for your property may bear absolutely no resemblance to your plan for your property.

Who inherits can depend on whether the deceased was married, whether there are children or other descendants, whether property was separate or community property, which relatives survived the deceased, and sometimes facts that nobody in the family realized were legally important until somebody died.

That is one reason estate planning matters in the first place.

It is not because lawyers have some deep emotional attachment to wills.

It is because if you do not make certain choices yourself, Louisiana has already made some of them for you.

Now, there are situations where a family may not need a full judicial succession.

Louisiana has what is called a small succession procedure. Under current Louisiana law, the small succession of a person who died domiciled in Louisiana generally includes an estate with a gross value of $200,000 or less at the time of death.

And this is the exact point where I need everyone to resist the urge to read that sentence, announce, “Grandma's estate is under $200,000!” and immediately download the first affidavit Google offers.

Because Louisiana law is never going to let us have something quite that easy.

The dollar amount is only part of the analysis.

Whether you can use the affidavit procedure depends on additional facts, including whether the deceased had a will and, in certain circumstances, whether Louisiana immovable property is involved. There are specific statutory requirements for the affidavit, who must sign it, and what information has to be included.

So, yes, small successions can be a very useful option.

No, “under $200,000” does not automatically mean “no lawyer, no courthouse, everybody sign this thing I found online.”

I realize that would be much more convenient.

I did not write the Code of Civil Procedure.

There is another misconception I would like to kill while we are here: needing a succession does not automatically mean your family is about to enter a two-year courtroom war.

A succession is a court proceeding. Litigation is something different.

If everyone agrees, the heirs are known, the necessary documents can be obtained, the property can be identified, the debts are manageable, and there is no real controversy, a succession can be relatively straightforward.

Nobody has to dramatically object from the back row of the courtroom.

Nobody has to accuse their sister of stealing Grandma's wedding ring.

Nobody has to produce a mysterious handwritten will that supposedly appeared behind the refrigerator fourteen months after the funeral.

Sometimes we file the appropriate paperwork, establish the necessary facts, obtain the court's judgment, record what needs to be recorded, and everybody moves on with their lives.

Of course, sometimes somebody does produce a mysterious handwritten document.

Then we have a different Tuesday.

One thing I do tell families fairly often is this: succession problems do not improve with age.

Families sometimes decide not to deal with property because nobody is fighting about it right now.

Dad dies, but Mom is still living in the house, so nobody worries about it.

Then Mom dies.

Nobody handles her succession either because the children all get along.

Then one of the children dies.

Then another child gets divorced.

Then somebody moves to Texas.

Then one of the grandchildren dies leaving minor children.

Then, fifteen years later, somebody decides they want to sell the family property.

At that point what began as “we just never got around to Daddy's succession” has developed a cast of characters.

Now I am locating heirs, untangling multiple estates, looking at marriages and deaths that occurred after the original owner died, and explaining why the $60,000 piece of property may require more legal work than anyone expected.

Nobody did anything malicious.

Nobody was trying to create a mess.

They just kept putting off a legal problem that quietly grew branches.

So, does every death require a full succession?

No.

Does having a will mean you automatically do not need one?

Also no.

What matters is what the person owned, how it was titled, whether assets pass another way, whether there was a valid will, who the heirs or legatees are, whether debts are involved, whether there is Louisiana real estate, and whether the estate qualifies for one of Louisiana's simpler procedures.

Sometimes somebody comes into my office convinced they are about to spend the next year administering an estate, and I get to tell them the situation is much simpler than they thought.

I enjoy those appointments.

Sometimes somebody comes in believing they have absolutely nothing to do because “everybody knows who gets the house,” and I have to explain that twenty-three people knowing something at the family reunion is unfortunately not the same thing as putting merchantable title in the public records.

I have those appointments too.

The point is that you do not need to figure all of this out before you ask for help.

If someone has died and you are sitting at the kitchen table with a will, three deeds, a bank statement, an old vehicle title, a property description that looks like it was written during the Louisiana Purchase, and absolutely no idea what you are supposed to do next, that is okay.

Bring me the pile.

We can figure out what actually matters, what does not, whether a succession is necessary, and what the simplest lawful route forward looks like.

You are not supposed to already know how to do the succession before you hire someone to help you with the succession.

That would rather defeat the purpose.

If you are trying to figure out what happens next after a death in your family, visit our Successions page below:

Successions

If you are ready for us to look at your particular situation, you can also submit an intake so our office can review the basic information and help determine the appropriate next step:

Start Intake

Judith L. Hampton

Attorney at Law

Hampton Law Firm, LLC

This article is for general educational purposes only and is not legal advice for any particular estate or succession. Louisiana succession matters depend on the specific family relationships, property, debts, title history, beneficiary designations, and estate-planning documents involved.