Louisiana Small Estate Affidavit
Legacy Estate & Elder Law of Louisiana, LLC
Like most states, Louisiana has a special procedure for dealing with small estates (called successions in Louisiana). In some circumstances, a small estate can be distributed to the heirs or beneficiaries without court involvement. In other cases, a small estate requires some form of court-supervised succession in Louisiana.
The application of the Louisiana’s small succession law depends on a two-part analysis:
Does the estate qualify as a “small succession?”
Can the estate be disposed of by a Louisiana Small Estate Affidavit, or will a court proceeding be required?
What is a Small Succession under Louisiana Law?
Louisiana law defines a “small” succession as “the succession or the ancillary succession of a person who has died at any time, leaving property in Louisiana having a gross value of one hundred twenty-five thousand dollars or less valued as of the date of death.” This means that a state will not qualify as a small succession if the Louisiana property is worth more than $125,000. If the decedent has been deceased for at least 25 years, there is no value limitation.
Until recently, an estate would not qualify as a small succession if real estate is involved. In 2009, Louisiana law was amended to allow certain types of real estate to be included within the definition of a “small succession.” The law was further changed in 2011 to remove any restrictions on the types of real estate that can be included in the definition of a “small succession” under Louisiana law. There is no distinction under current law between real estate and other assets. As long as the gross value of the decedent’s assets is worth less than $125,000, the estate should qualify as a “small succession.”
Note: This definition only qualifies a succession as a small succession for purposes of the small succession rules. Failure to qualify does not necessarily mean that a full Louisiana estate administration will be required; it only means that the small succession procedures are unavailable. A Succession Without Administration (Simple Putting in Possession) may still be available. See our discussion of the different types of successions in Louisiana for more information.
Can a Louisiana Small Succession Affidavit be Used to Deal with the Property?
If the estate qualifies as a small succession, the next step is to determine whether a Louisiana Small Estate Affidavit can be used to transfer the property. If so, a court proceeding may not be required.
Louisiana law allows the transfer of a small succession property by affidavit (i.e., a court proceeding will not be necessary) if:
The estate qualifies as a small succession;
The decedent either died without a will while domiciled in Louisiana or died with a will while domiciled in another state if the will was probated in the another state; and
The decedent’s sole heirs are his or her descendants, ascendants, brothers or sisters or descendants of brothers and sisters, surviving spouse, and/or beneficiaries of the decedent’s will that was probated in another state.
If the estate meets these requirements, it can be disposed of by a Louisiana Small Estate Affidavit. The form of the Louisiana Small Estate Affidavit is defined by law.
Note: Although Louisiana’s Small Estate Affidavit law authorizes third parties (such as banks or buyers of real estate) to rely on the affidavit, it does not force them to do so. Third parties, such as transfer agents for stock, will often require a Judgment of Possession before releasing the property. Because of this, the Louisiana Small Estate Affidavit doesn’t always do the job. Some sort of judicial proceeding (usually without administration) is often required, even when a Small Estate Affidavit technically could pass title to the estate assets.
Louisiana law has special rules about who must sign the Louisiana Small Estate Affidavit. These rules differ depending on the decedent’s family situation:
If the decedent had a surviving spouse, the Small Estate Affidavit must be signed by the decedent’s surviving spouse and at least one of the decedent’s adult heirs.
If the decedent did not leave a surviving spouse, the Small Estate Affidavit must be signed by two adult heirs.
If the decedent only had one heir, the Small Estate Affidavit must be signed by that heir and another person who has knowledge of the facts listed in the Small Estate Affidavit.
If any of the heirs listed in the Small Estate Affidavit are minors, their natural guardian (called a tutor in Louisiana) can sign the Small Estate Affidavit on behalf of the minor heirs. The natural guardian will usually be the child’s surviving parent or a close family member.
Judicial Administration of Small Estates
If the estate meets the definition of small succession but doesn’t qualify for distribution by a Louisiana Small Estate Affidavit, the succession will need to be opened in court. The same rules will apply to the small succession as apply to Louisiana successions, with a few key differences:
Different procedures for sale of property – If the succession representative wants to sell succession property, he or she must publish notice in the newspaper of the parish where the succession was opened. The property must be sold in at least 10, but not more than 15, days from the date of publication. Special publication requirements apply.
Lower administration costs – If the succession qualifies as a small succession, the court costs are cut in half. The personal representative’s fees are also capped at 5 percent of the value of the estate.
Otherwise, the succession will usually be opened with the court and treated the same as any other succession. See our section on the types of Louisiana successions to learn more about the options available for Louisiana successions.
Dealing with Real Estate owned by Louisiana Small Estates
Louisiana law has special rules for real estate (immovable property) owned by a small succession. If the property is left to more than one person (co-owners), the law assumes that the co-owner that possesses the property for more than a year has been designated by the other co-owners to keep up with the property. This presumed appointment to act on behalf of co-owners also gives the person possessing the property the right to mortgage the property without the consent of the other co-owners.
Unless the co-owners file a written agreement to the contrary, the court or other public entity can conclusively presume that the person who possesses the property has the right to deal with the real estate, including receiving and disbursing funds for the repair of the property.
This doesn’t mean, however, that the person possessing the property can engage in self-dealing. He or she is held to a fiduciary standard (called negotiorum gestio in Louisiana). This requires the possessor to act in the best interest of all concerned. The possessing owner will be liable to the non-possessing co-owners for failure to act in their best interest.
There is a two-year limitation on the ability of someone to contest the transfer of small succession immovable property (real estate) by affidavit. After that time, it is too late to claim that the title was transferred to the wrong heirs.
If the small estate includes real estate, the Small Estate Affidavit and the decedent’s death certificate must be recorded in the land records in the parish where the real estate is located. The recording must happen within 90 days of the date of the decedent’s death.