One of the most stressful situations in life is the death of a family member. When someone dies without leaving a will, this stress can be compounded by uncertainty over how the estate of the deceased will be passed on. If someone dies without a valid will, they are considered to have died “intestate.” In Louisiana, the estate is handled by the Louisiana Laws of Intestate Succession. How the estate is passed down depends on several factors–mainly the type of property and the status of the deceased’s living relatives.
In Louisiana, if the deceased was married, the assets are recognized as either community property or separate property. Assets acquired during the marriage are usually considered community property. In general, community property includes property acquired by the effort, skill, or industry of either spouse, property given to the couple jointly, and all other property not classified as separate property. Separate property includes property acquired before the marriage, property acquired by one spouse through inheritance, or assets that have been voluntarily separated from community property.
Community property law can be complex. Community and separate property are handled differently in intestate succession. When one spouse dies intestate, the other spouse receives full ownership of his or her half of community property. The other half is considered to belong to the deceased spouse’s estate. If the deceased spouse has children, his or her children will inherit their half of the community property, and the remaining spouse will retain what’s called a usufruct over the property. This means the spouse can use the property until they die or remarry, at which point it will pass to the descendants. For example, if Joe dies without a will, his wife Jane will receive one-half of the house they purchased while married. Their children will receive the other half, divided equally, but Jane has a usufruct or lifetime estate over the property: she will usually be able to live in the house until she dies or remarries. If there are no descendants, the surviving spouse receives all of the community property. Separate property is handled in the same way as the property of someone who never married. It is passed on according to the normal laws of intestate succession.
How the estate will be passed on depends on which family members are alive. When a person dies without a will, the children inherit the property in equal shares. If the deceased never had children, the siblings inherit the property in equal shares. If the deceased had no children, but living parents, the parents retain a usufruct over the property, which is then passed to any siblings when the parents die. Parents can only inherit intestate property directly if the deceased has no children, spouse, or siblings. A spouse can only directly inherit separate property if the deceased has no living children, parents, or siblings.
How shares are divided among children can depend on the circumstances of their birth. Any child born to the mother during a marriage is presumed to be the legitimate child of the husband. Illegitimate children, (children born from a mother the deceased was not married to at the time of birth) can receive a share of the estate equal to the share of a legitimate child, if the parent acknowledges the illegitimate child, or the child can prove paternity. This can be done by the parent registering the birth or baptism of the child or by signing a declaration in front of a notary public and two witnesses. Any children adopted by the deceased will receive an equal share of the estate; however, foster children and step children who have not been legally adopted will not receive a share. Grandchildren will receive a share only if their parent (the deceased person’s child) is dead.
Some people may be concerned that the state will get their property if they die intestate. The law is designed to give the property to a relative–even a very distant one–over the state. When property passes to the state, it is said to “escheat.” That will only occur if there are no surviving parents, children, grandparents, grandchildren, aunts, uncles, great aunts or uncles, nieces, nephews, or cousins of any degree.
The laws governing intestate succession are strict and inflexible. Without a will, you will have no control over how your estate is dispersed. It will proceed according to intestate law, regardless of what you may have wanted. If you want your wishes to be respected, it is critical to have a signed last will and testament, to make sure that the assets you obtained during your lifetime can be handled as you see fit.