Most of us are familiar with the purpose of a will. A will establishes what will happen to your assets and belongings (meaning who they should be distributed to) after you pass away. But what happens if you die without establishing a will beforehand? Who will inherit what was left behind?
When a person dies without having a last will and testament in place, it is up to the state to determine where their personal property will go. Each state has its own laws regarding intestacy (dying without a will). In this post, our Shreveport succession lawyers at Greenwald Law Firm will answer your questions regarding what happens if you die without having a will in the state of Louisiana.
Who Inherits When There is No Will?
In cases where there is no will or estate plan, it is generally up to the state’s laws on how personal property will be distributed. Each state outlines the order in which various relatives should inherit their deceased loved one’s property. In most cases, only spouses (including civil union partners and registered domestic partners, depending on where you reside) and blood relatives of the deceased will inherit.
In cases where there are no heirs (children), it is typically the surviving spouse that inherits the entire state. When children are involved, it is common for the state to distribute it solely between the deceased’s spouse and children. If there are no surviving children or spouses left behind, the state generally takes on the deceased’s estate. Unmarried partners and close friends of the deceased will not inherit anything without the clear instruction of a valid will.
Every state has laws prohibiting the person who was responsible for the death from receiving any inheritance, should they be a successor. Additionally, in cases where a parent abandoned the child, refused to support the child, or committed certain crimes against the child, they may not receive any of said child’s personal property upon their death.
Community Property vs Separate Property
A person’s “estate” refers to the property they leave behind. This includes real estate, bank accounts, retirement accounts, life insurance policies, personal belongings, property deeds, stocks, and other assets.
Some states, including Louisiana, classify a person’s assets as either separate or community property. Separate property refers to the property a person owned before their marriage, property that is solely owned according to a prenuptial agreement, and any property that was acquired as a gift or inheritance during the marriage. Community property, on the other hand, refers to the assets that are equally shared in a common-law marriage. This may also be referred to as joint tenancy.
Who inherits what property depends on which type of property it is categorized as.
Louisiana Intestate Succession Laws
When a recently deceased person does not leave behind a valid will, they are considered to have died “intestate.” Your state’s intestate succession law will determine things like who will inherit the deceased person’s personal belongings, who will administer the estate (personal representative), and who will become the personal guardian for any surviving minor children, if applicable.
Below is the order in which blood relatives inherit a family member’s separate property if they die intestate:
- Surviving Descendants: Under Louisiana intestacy laws, a deceased person’s separate property is first distributed among any surviving children. This includes adopted children and both minor and adult children. Each child should receive equal shares of the inheritance. If any of the deceased person’s children have already passed away but left behind children of their own, they (the deceased’s grandchildren) will share between them the assets that would have originally been allocated to their parents.
- Surviving Parents: If the deceased person does not have any direct descendants but is survived by one or both parents, the parents may inherit the property.
- Surviving Siblings: If the decedent was not survived by his or her parents but has siblings by the same parents, they are next in line to inherit the estate. It gets a bit more tricky when half-siblings are involved, as they would not acquire the same share that a full-blooded sibling would.
- Other Family Members: If the deceased person has no surviving descendants, parents, siblings, or spouse, other more distant relatives inherit the property.
- The State: In the rare event that a deceased person has no living relatives, the state will take on the entire estate.
As for community property, there are one of two ways this may play out. If the decedent leaves behind both a surviving spouse (or, in some states, a registered domestic partner aka “domestic partnership”) and children or grandchildren, the spouse has “usufruct,” meaning they possess the right to use their deceased spouse’s share of the property for the remainder of their life or until they remarry. The descendants (children, grandchildren, etc.) will inherit this share, as well as all separate property, once the surviving spouse dies or remarries.
- If there is no surviving partner but there are surviving descendants, it is no longer considered community property, and the descendants will split the share equally.
- If there are no surviving descendants but there is a surviving spouse, the spouse will inherit the entirety of the property.
- If there are no surviving descendants or spouses of the deceased, the entire estate will be passed down to both or one of the surviving parents.
- If no spouse, parent, nor child survives the deceased, all the property will be distributed among the deceased’s siblings, if any, as well as their descendants (nieces/nephews of the deceased).
- If any of the aforementioned relatives are not living, one-half of the estate will go to the surviving maternal grandparents and/or their descendants, while the other half will go to the surviving paternal grandparents and/or their descendants.
Can an Executor Decide Who Gets What?
An executor is a person that was chosen by the deceased person when they created their will. The executor is responsible for managing the estate following their death. If no will is created, the court will appoint an executor themselves. State law requires that the executor of the will must be at least 18 years old, of sound mind and good moral character, and must not have been convicted of any felonies.
The question is what an executor of a will can and cannot do. The executor is not in charge of who gets what in probate court. That decision relies solely on either the valid and signed will of the deceased person or, if they are intestate, the state’s law. Instead, an executor is responsible for managing the assets of the deceased person. This includes obtaining death certificates, notifying government agencies, setting up an estate bank account to pay debts, taking inventory of assets, ensuring the share is divided equally, and more.
What an Executor Cannot Do
An executor of a will cannot:
- Begin managing the estate until its creator dies
- Determine beneficiary designation
- Exclude a named beneficiary
- Sign an unsigned will
- Alter the provisions of the will
- Sell the assets of the estate for less than the fair market value (unless agreed upon by the decedent’s heirs)
- Prevent family members or beneficiaries from contesting a will
Executor Vs. Personal Representative
A personal representative and an executor are one and the same. If the deceased person doesn’t name an executor, also referred to as a personal representative, a judge will name one to manage the deceased person’s estate.
Can an Executor of a Will Be a Beneficiary?
Yes, an executor of a will can also be a beneficiary of the will. It is often a deceased parents wishes that the eldest or most responsible adult child be the executor of their will. It is also relatively common for a surviving spouse to be the estate’s executor. In many cases, this is the easiest decision because a person’s own family is often the ones that know them best and will be able to handle their property according to their wishes. Of course, this simply depends on individual family circumstances. For some, it may be a safer and less stressful option to choose someone other than a beneficiary to act as executor.
If you are planning on naming an executor of your will, make sure they are comfortable taking on such a large responsibility. It may be beneficial to hire a probate attorney to help the executor through this process, especially if the personal representative you choose is unfamiliar with handling things like real estate, life insurance, bank accounts, and other securities, debts, and assets. Having an experienced Shreveport estate lawyer like Joey Greenwald can help ensure this complex process goes as smoothly as possible.
What Can Family Members Do if a Loved One Dies Without a Will?
Whether they simply couldn’t get to it in time or they did not understand the importance of having a last will and testament, many people do end up passing away without having a written will in place. Unfortunately, the absence of a will can leave potential beneficiaries and heirs confused, left empty-handed, and even vulnerable to predation.
So what can family members do if a loved one dies without a will?
First, they should file a motion for what is called an “Administrative Proceeding.” This proceeding is similar to probate court, but instead of being at the hands of the deceased person’s will, it is left to the intestate succession laws in your state. During an Administrative Proceeding, the court will determine the estate administrator (essentially a personal representative/executor) of the decedent and he or she will distribute the assets accordingly. The administrator is typically a surviving spouse or civil partner, surviving adult children, or the surviving parents of the deceased.
Louisiana requires executors and estate administrators to take an oath and post a bond equal to 125 percent of the estate’s value to ensure that the estate is managed responsibly.
Shreveport Estate Planning and Successions Lawyer
Probate and succession in Louisiana can be difficult for many reasons, especially if it is an intestate succession. If you’re looking for a probate attorney to aid in this process, it’s important that you hire someone with the legal knowledge, skill, and experience to help you navigate these complexities. A seasoned attorney like Joseph Greenwald of the Greenwald Law Firm understands the many difficulties that may arise when handling an entire estate and can help you properly administer the assets held in it.