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Definitions of Common Terms

Absent Heirs - Heirs of the decedent who cannot be located. Heirs who have left the state can appoint an agent in Louisiana if the need arises.

Acceptance without Administration - Acceptance without Administration is the most common form of succession procedure. It is sometimes referred to as a Simple Putting in Possession. It is available whenever the succession is clearly solvent and there is no need for an administration.

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.

Extra-Judicial Succession - A procedure for handling an intestate succession when there is no immovable property, the heirs are ascendants, descendants, spouse or brothers and sisters of the decedent and the gross value of the estate is less than $50,000. It entails executing an affidavit, preparing a Louisiana Inheritance Tax Return, paying any taxes that are due and procuring a stamp from the collector of inheritance taxes. It is not necessary to file any pleadings in court.

Fiduciary - A person who owes a duty to another to protect that person's interest. Generally, a fiduciary has the obligation to place the interest of that other person above his or her own interest.

Forced Heirs - Heirs to whom a decedent must leave a portion of his estate. This is established by the Louisiana Constitution. Currently, 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. If there is one forced heir, the forced portion which must be left to that heir is 25%. If there are two or more forced heirs, the forced portion which must be left to those heirs is 50%. In no case, will the forced portion be more than that heir would inherit in an intestate succession.

Heir - A person who inherits from another person who had died intestate. A person who inherits under the terms of a valid testament is called a legatee.

Homologated - From the Latin words 'homo' meaning same and 'logis' meaning thinking. When the judge is of the same thinking as the succession representative, he homologates the document which the succession representative is proposing. This has the effect of approving the proposal and making it the judgment of the court.

Immovable Property - Generally, this term applies to real estate, but it can also include an interest in real estate that is not full ownership. For example, a long term lease of ground for construction of an office building, a mineral servitude, or being the payee on a loan which is secured by a mortgage on immovable property are immovables.

Intestate - When a person dies without having executed a testament, or if he had executed a testament, it was revoked by the testator before he died or if the testament was declared invalid by a court of law.

Judgment of Possession - A judgment in a succession procedure which recognizes who are the heirs or legatees of the decedent and transfers all of the property to those heirs or legatees. It usually orders all financial institutions and stock transfer agents to turn over the accounts and stocks in the name of the decedent to his heirs or legatees.

Jurisdiction - The power of a court to hear a case. In succession proceedings, the only court which has jurisdiction is the court for the parish in which the decedent was domiciled at the time of his death. If the decedent resided outside of Louisiana at the time of his death, any parish in which he owned immovable property has jurisdiction to resolve any questions concerning that immovable property.

Legatee - A person who inherits from another under the terms of a valid testament.

Olographic Testament - A handwritten testament. It must be entirely hadnwritten by the testator, dated, signed by the testator at the end and contain language which clearly indicates that he intends that document to be his testament. Our experience shows that the majority of cases where the validity of the testament was challenged were olographic testaments, even though olographic testaments only makeup a small percentage of testaments that are probated.

Probate - The legal procedure for proving that a testament is valid and is the last testament executed by the decedent.

Representation - When an heir or legatee predeceases the decedent in a succession, that predeceased heir or legatee may be represented in the succession by his children. Representation takes place when the predeceased heir or legatee was a spouse, descendant or ascendant, or brother or sister.

Simple putting in possession - The most common form of succession proceeding. It entails preparing several documents which are presented to the collector of inheritance taxes, along with a Louisiana Inheritance Tax Return, and are then filed in the court with jurisdiction over this succession. After reviewing the pleadings and the receipt from the collector of inheritance taxes, a judge from that court will sign a Judgment of Possession, which transfers all of the assets of the decedent to his heirs or legatees.

Solvent - The succession is solvent if the assets that the decedent owned were clearly greater than the debts that he owed.

Succession representative - The person appointed by a judge who is responsible for collecting all of the assets of the succession and selling all assets that should be sold, determining what debts are owed and seeing to it that those debts are paid, presenting any testament to the court for probate, protecting the assets during the administration of the succession and submitting a plan to the judge for concluding the succession. If the decedent died testate, the succession representative will be called the executor or executrix of the testament. If the decedent died intestate, his succession representative will be called the administrator or administratrix of his succession.

Tableau of Distribution - A document by which the succession representative proposes to distribute assets of the succession, either to pay debts of the succession or to distribute assets to the heirs or legatees. Notice of filing the tableau will be given to anyone who requests it, and notice will also be published in the official journal for the parish. If no opposition to the tableau is filed in the succession proceeding within the time allowed, the succession representative may submit an order homologating the tableau, that is approving it, for the judge's signature without a hearing.

Testament - Commonly called a will or a last will and testament. It is a document by which the testator declares to whom he wishes to leave his property after his death. In the past, there were several types of testament that were recognized by Louisiana law, but now there are two. The 'notarial testament', which should be prepared by an attorney and will follow certain formalities, and the olographic testament, which must be written entirely in the hand of the testator, indicate the date on which it was written and be signed by the testator. Additionally, the olographic testament must contain words that clearly indicate that the document is intended to be a testament.

Testate - When a person dies having executed a testament which remained valid at the time of his death.

Testator - The person who executes a testament.

Usufruct - The legal principal by which one person has the right to use property and to receive the things that property produces, that is, its fruits. Another person retains the right to receive the property when the usufruct ends. When a person dies intestate, his or her spouse will have the usufruct over all the community property the couple owned at the time of the decedent's death. This is referred to as the 'legal usufruct' because it takes place by operation of law. The legal usufruct terminates when the surviving spouse remarries or dies. The surviving spouse can also voluntarily terminate a usufruct, so that the children come into the property in full ownership. The person who holds the usufruct is called the usufructuary.

 

The information in this website is to help you understand the law in general. It is not intended to be legal advice.
For advice on your particular situation, please call to schedule a free consultation with one of our attorneys..

 

The Koehler Firm
Metairie, Louisiana
(504) 309-0812