Probate is the process by which property owned by a deceased person is distributed according to a will. If you are not a resident of Louisiana, but own property in the state at the time of death, a separate probate action, known as ancillary probate, will be required. Understanding and following the unique rules applicable to Louisiana will help ensure that unnecessary delays are avoided in the probate process.
Overview of Ancillary Probate
Ancillary probate is necessary for nonresidents who die owning property in Louisiana. This represents an additional step to the standard probate process because a state's probate laws apply only to property located within its borders. As part of ancillary probate, the person appointed to administer the estate, referred to as a personal representative, is responsible for collecting and inventorying all of the deceased person's assets located in Louisiana and submitting the will to the probate court in the parish where the deceased person owned real estate. If only personal property was owned in Louisiana, the matter must be submitted in the parish where the personal property is located.
Wills From Another State
A will must be deemed valid for property to be distributed according to its terms. However, as part of ancillary probate in Louisiana, the will need only be valid in the state where the decedent lived. This requires an initial determination from the home state that the will meets all of the local requirements. For example, some states recognize signed wills that are written in the deceased person's handwriting but not witnessed. This is known as a holographic or olographic will, which are valid in Louisiana only if the signature is at the bottom. However, for ancillary probate, a holographic will's terms will be honored even if not signed at the bottom, provided it is first declared valid in the decedent's state of residence.
The personal representative must meet Louisiana's formal requirements to administer a will in ancillary probate. This person is often named in the will, but may have been appointed by the court in the state where the decedent lived. However, unlike wills, Louisiana probate courts do not defer to the laws of the home state to determine the eligibility of a personal representative. This could result in a different person being appointed by the Louisiana courts to handle the ancillary probate process. Louisiana requires that a personal representative be at least 18 years old, mentally competent and not a felon. Further, if the personal representative does not live in the state, the law requires that she engage the services of a local agent to receive official notices and other correspondence from the court.
After the court has determined that the personal representative meets the qualifications to serve, a bond may be required. This will depend on whether the representative was named in the will or was appointed by the court. If the representative was named in the will, bond is generally not required unless requested by creditors, minor children of the decedent, or the surviving spouse. If the representative was appointed by the court, a bond equal to 125 percent of the estate's value is required. For example, if the property is valued at $100,000, the representative must make a bond deposit of at least $125,000. The bond serves as security to guard against misappropriation of the decedent's property.