Probate is the means by which a court transfers legal ownership of property from a deceased person to his heirs, usually according to his wishes as reflected in a will. Transferring legal title to property usually requires a probate proceeding in Louisiana, regardless of whether the decedent left a will. Louisiana allows the winding up of some relatively small estates without a probate proceeding, but all the conditions imposed by state law must be met in order for a probate court to distribute estate assets without a formal probate proceeding.
Probate Not Required
Louisiana does not require a probate proceeding if a decedent did not leave a will, did not own real property and any existing personal property is valued at less than $50,000. In this case, a probate court allows the decedent's personal property to be given immediately to the appropriate heirs in the order prescribed by statute. For example, a surviving spouse inherits first and whatever property remains is divided between the decedent's children.
Intestacy -- Community Property
Dying intestate means dying without a will. Louisiana's intestacy laws govern who inherits a decedent's property if he dies without a will. Louisiana is a community property state; thus, any property acquired during marriage is jointly owned by both the decedent and his surviving spouse. When an individual dies without a will, the ownership interest in community property is divided in half. The surviving spouse keeps her half and the decedent's children inherit his remaining half of the property. As a result, the surviving spouse and the decedent's children become co-owners of the community property.
Intestacy -- Separate Property
Property acquired by a spouse before marriage or by inheritance or gift during the marriage remains separate property, which means it is owned by the decedent alone. If the decedent died without a will, all of his separate property goes to his descendants, such as his children and, if the children are deceased, grandchildren. If there are no descendants, a decedent's separate property is inherited by his surviving siblings, but his parents inherit a right to use the property for the duration of their lifetimes.
If a decedent left a will, that will must be submitted to the probate court in the county where the decedent lived at the time of his death. The probate process begins with a person, usually a family member, asking the court to open a probate proceeding and appoint a personal representative to oversee estate affairs. Subsequently, the personal representative identifies heirs and beneficiaries, publishes required notices to creditors, pays debts, including court costs and fees, and manages all business of the estate until all of the estate's assets have been properly distributed in accordance with the terms of the will.
Louisiana law maintains a concept called "forced heirs." Forced heirs are children of the decedent who are 23 years of age or younger at the time of his death. These descendants cannot be prevented from inheriting a share of the estate because they were omitted from the will, even if the omission was intentional. In other words, even if they are not designated to inherit in the will, the law requires that they inherit as if they were included in the will.
An ancillary probate proceeding is required if the decedent owned any real property located outside of Louisiana. Ancillary probate is a limited probate proceeding opened in the state where the property is located for the specific purpose of transferring title of that property to the beneficiary designated in the will to inherit it.