Louisiana

Louisiana is the only civil law jurisdiction in the United States, and almost none of the
vocabulary from the other forty-nine states applies. There is no estate — there is a
succession. There are no counties — there are parishes. And the rules about who must
inherit are unlike anywhere else in the country.

Forced heirship

This is the big one. Louisiana still recognises forced heirs: children who, at the parent's
death, were under 24, or who are permanently incapable of caring for themselves or managing
their affairs because of a mental or physical infirmity, at any age.

A forced heir cannot simply be disinherited. They are entitled to the legitime — broadly
one quarter of the succession where there is one forced heir, and one half where there
are two or more. Only the balance, the disposable portion, can be left freely. Disinherison is
possible but only on narrow statutory grounds and only if stated in the testament.

Community property and usufruct

Louisiana is a community property state, so the surviving spouse already owns half of what
the couple acquired during the marriage. A common Louisiana arrangement leaves the spouse a
usufruct — the right to use and enjoy the property for life — with the children holding
naked ownership, taking full title when the usufruct ends.

Opening the succession

The succession is opened in the district court of the parish where the deceased was domiciled. A
succession representative — an executor under a testament, an administrator without one —
is appointed where administration is needed. Smaller successions may qualify for a simplified
procedure, and independent administration is available.

No death tax

Louisiana has neither an estate nor an inheritance tax.

Louisiana calls it a testament, and recognises two forms.

Notarial testament

The standard form. Signed by the testator before a notary and two witnesses, with a
prescribed attestation clause. It is the form a Louisiana lawyer will draft, and it is far the
safer of the two — a defect in the attestation is the most common ground on which a Louisiana
testament fails.

Olographic testament

Written entirely in the testator's own handwriting, dated, and signed. No notary and
no witnesses. It is valid, and unlike most handwritten wills elsewhere the date is a
requirement, not merely a good idea. Any part not in the testator's hand can be disregarded or
can undermine the whole document.

Forced heirs cannot be written out

A testament does not override forced heirship. If you have a child under 24, or a child of
any age who is permanently incapable of caring for themselves, they are entitled to the
legitime whatever the testament says. You can direct how the disposable portion goes, and you
can place the legitime in trust in defined circumstances, but you cannot simply leave a forced
heir nothing.

Think about the usufruct explicitly

A testament can grant the surviving spouse a usufruct over the deceased's share, and can make
it lifetime rather than ending on remarriage, and can waive the security a naked owner might
otherwise demand. Left unsaid, the default rules apply and they may not be what the couple
assumed.

Also

• Name an alternate executor, say whether they serve without bond, and consider granting
  independent administration — it removes a great deal of court supervision.
• Review after a marriage, divorce, birth, or a child's 24th birthday.

Yes, and Louisiana sets a default that most other states do not.

Two and a half per cent of the inventory

Under Code of Civil Procedure article 3351, where the testament does not provide otherwise and
there is no agreement, the executor or administrator is allowed 2.5% of the amount of the
inventory as compensation for administering the succession.

Confirm the current article before relying on it.

The order of precedence

Louisiana works through three possibilities in order:

1. The testament — an executor is allowed such reasonable amount as the testament provides.
2. Agreement — an administrator may be allowed such reasonable amount as is agreed between
   them and the surviving spouse and all competent heirs or legatees.
3. The default — failing either, 2.5% of the inventory.

The court can increase it

Where the usual commission is inadequate for the work actually done, the court may increase
it on proper showing. A succession involving litigation, a business, or property in several
parishes is exactly the case for asking.

When it is paid

Compensation is due on the homologation of the final account — the court's approval of the
representative's accounting. Not before.

If you are writing a testament

Say what the executor is to be paid. The 2.5% default is calculated on the inventory, which
takes no account of how difficult the succession turns out to be, and a sentence in the testament
avoids the argument entirely.

Tax

Compensation is taxable income; an inheritance is not. With no Louisiana death tax to deduct
it against, an heir serving as executor often does better declining.

A Louisiana succession representative is reimbursed out of the succession for the reasonable
expenses of administering it, separately from the 2.5% commission. These appear on the account
the court homologates, so document as you go.

Normally claimable

• Funeral, burial or entombment, and a reasonable reception. Above-ground tomb maintenance and
  opening fees are a genuine and claimable cost in much of south Louisiana.
• Court costs, certified letters, certified death certificates, and the fees of the notary
  who handles the succession.
• Attorney's fees, and accountant's fees for the final Form 1040 and any Form 1041.
• Inventory and appraisal costs — which matter more here than elsewhere, because the
  inventory is the base on which the representative's own commission is calculated.
• Appraisals of immovable property, farmland, timber, mineral and royalty interests, vehicles,
  boats and collections.
• Carrying costs on succession property until sale: insurance — including flood and windstorm
  cover, which must not be allowed to lapse — parish property tax, utilities, security and
  maintenance.
• Hurricane preparation and storm damage mitigation: boarding up, tarping, tree removal,
  mould remediation.
• Cleaning, clearing, storing, moving and shipping contents, including a camp.
• Travel on succession business at a reasonable rate.

Normally not claimable

• The representative's lost wages, meals near home, or personal spending.
• Costs run up for one heir's convenience rather than the succession's.
• Improvements beyond preparing a property for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open a separate succession account and run everything through it. The final account has to be
homologated by the court before the representative is paid, so the record is not optional.

Louisiana successions are usually handled by a family member working with a notary or an
attorney — and in this state the professional involvement is closer to the norm than the
exception, because the civil law procedure is genuinely unlike anywhere else.

Consider a professional executor when

• There are forced heirs, particularly where a child under 24 or an incapacitated child has to
  receive the legitime and the surviving spouse's usufruct has to be worked around. Getting the
  fractions wrong is not a rounding error; it is a claim.
• The succession holds mineral or royalty interests. Louisiana mineral servitudes prescribe
  for non-use after ten years, so an interest that is simply left alone can be lost. This is
  the strongest Louisiana case for a professional.
• Community property characterisation is unclear — a second marriage, separate property
  commingled over decades, or a couple who moved here from a common law state.
• There is a family business, farm, or camp to keep running or divide.
• There is conflict among the heirs, or the testament is olographic and its form is likely
  to be attacked.
• The intended executor lives out of state and has never encountered a usufruct, a legitime or
  a homologation.

What it costs

Notaries generally quote by the act; attorneys bill hourly or against the 2.5% commission; a
corporate fiduciary will want a negotiated percentage with a minimum. Ask in writing.

Middle ground

Appoint a family member, grant independent administration without bond in the testament, and
let them retain a Louisiana notary or attorney at the succession's expense.