What Happens In A Succession?

There are many different procedures for handling successions, depending on the size of the assets in the succession and whether there are any complications with the succession. Some complications could be whether there is a challenge to the validity of the testament, whether there are forced heirs (See Louisiana Forced Heirship), whether there needs to be an investigation into what assets the decedent owned or debts he owed, if there are stocks to be transfered, or other matters.

When Judicial Proceedings Are Unnecessary

This is sometimes called an extra-judicial succession. It is not necessary to judicially open a small succession when the decedent died intestate, left no immovable property, and his heirs are his descendants, ascendants, spouse, brothers or sisters, or descendants of brothers or sisters. In this case, the heirs can execute an affidavit. This affidavit is authority for banks, or anyone holding tangible property of the decedent to deliver that property to his heirs.

The statutes that created this procedure state that the affidavit, "shall be full and sufficient authority for the payment or delivery of the money or property of the deceased..." The statute doesn't clearly state that the holder of the property must comply with the request for delivery, but talks in terms of the holder of the property being absolved from liability to anyone else if he delivers the property based upon this authority. Because transfer agents for publicly traded stocks are much more familiar with Judgments of Possession, we recommend that if the assets of the succession include publicly traded stocks or securities, this extra judicial procedure not be used. Instead, we recommend that in those circumstances, you use a Judicial Proceeding.

Judicial Proceedings, Acceptance without Administration

This 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. See the next section to determine if an administration is necessary.

This procedure requires the heirs and surviving spouse to execute certain pleadings to be filed in the court that has jurisdiction over the succession, that the attorney who signs the pleadings shows certain documentary proof establishing the decedent's death, his domicile at the time of his death, who his heirs are, whether he left a valid testament, a copy of that testament and proof of the testament if there is one, proof of the assets and liabilities of the decedent, proof of the administrative expenses of the succession. When all of these things have been properly brought before the judge, he will sign the Judgment of Possession. This Judgment of Possession will recognize what property is owned by the surviving spouse and what property the surviving spouse will have usufruct over. The Judgment of Possession will also declare who the decedent's heirs or legatees are and will recognize them as owners of the property they inherit. The Judgment of Possession also will contain an order by the court that everyone who holds property of the decedent deliver that property to the heirs and surviving spouse.

It won't be necessary for anyone other than the attorney for the succession to appear in court when this procedure is used, but you will be required to sign the pleadings and affidavits which the attorney for the succession will need to prove the facts necessary to obtain the Judgment of Possession.

Judicial Proceeding, Administration of the Succession

This is the most complex form of succession procedure. It is necessary whenever there needs to be a judicial determination of any of the following matters:

Generally speaking, when a succession is administered, someone must be appointed as the succession representative. The succession representative will be responsible for collecting all of the assets of the decedent, determining what debts are owed by the succession and seeing that they are paid, and initiating the court proceedings to resolve any questions that brought about the need for an administration. The succession representative owes a fiduciary duty to the heirs and creditors of the succession. The succession representative can be an heir or legatee. The testator usually names who he wants to be the succession representative in the testament, but if he does not do so or if the named representative refuses to serve, the court will pick the representative from among the heirs or legatees, according to law.

Once all of the issues have been resolved in court, the succession representative will propose a Tableau of Distribution, which explains how the assets of the succession will be divided. If there is no opposition to the tableau, it can be homologated by the judge, and the assets will then be distributed according to the tableau. If there is an opposition to the tableau, there will be a trial, and after the trial, the judge will decide whether to homologate the tableau despite the opposition. The succession representative will also be obligated to file an accounting of his administration annually and at the conclusion of the succession.

The succession representative is entitled to a fee for his services. The fee is set by law at 2½% of the gross estate, but the judge can award more if the circumstances warrant.