Understanding Probate Court
Probate is the process of validating someone’s will and making certain that an executor handles the assets, debts, and tax filings legally and in line with the decedent’s wishes. In Louisiana, a probate proceeding is known as a succession. Under most circumstances, to begin probate or open a succession,” an interested person, usually next of kin, must file with the parish court where the decedent lived, even if there is a property for dispersal in another state. (For immovable property (real estate), an ancillary succession / probate must also be filed in the state where the land is located.)
By law, when a person dies, their estate must be dispersed among heirs, and outstanding debts paid and the filing of final government taxes, if applicable. These tasks are the responsibility of the named executor in the decedent’s will. If the decedent dies intestate (without a will), the probate court may assign an administrator to determine asset distribution to the heirs as outlined by Louisiana law, unless the distribution is relatively straightforward or the heirs otherwise agree.
What are the Steps of the Probate Process?
Very generally, after the will is approved by the judge and executor receives approval serving, the executor will receive Letters Testamentary from the court, which is a document that authorizes the executor to act for the estate and carry out the decedent’s wishes according to how their will is written. If there are deficiencies or requests for supplemental information, the court will set a future date for approval and review the additional data. Letters Testamentary are essential to moving forward, and the executor should get them as quickly as possible and get two or three certified copies.
If the probate court finds everything in order and determines the will in question to be legally valid, the approved executor sets about dispersing the assets to heirs, handling outstanding debts, and paying the decedent’s final taxes. If an heir is disgruntled regarding their share of assets to be received or left out of the will entirely (and if the person is a “forced heir”), they may petition the probate court to effect a change. Contesting a will to a probate court as a potential or disgruntled heir usually involves claims that the decedent was:
- Not of sound mind (mental state) when writing their will
- Under undue influence
- Suspicions of will fraud or forgery
- Improper will execution
Also, if the descendant was under 24 years old or disabled, he or she may be a forced heir and thereby entitled to a certain portion of the estate, regardless of what the will states. Likewise, creditors who have a claim against the estate may also petition the probate court if the debt claim is not paid in its entirety. Generally, these debts are personal loans, credit card debt, medical expenses, and unpaid bills.
Understand Petitioning Probate Court
An heir or creditor may petition the probate court about their rights to the estate if the executor denies their claim. The probate court’s job is to determine if the claim is legitimate or not in response to a petition filing. Acting on the filing, the court will set a hearing date, and all relevant parties will receive notice of that date and time. The parties to receive notice include the executor , heirs, creditors, and anyone named in the will. These challenges to an estate require a knowledgeable probate litigation attorney to get the best results.
The executor provides detail of his actions regarding the estate to the probate court judge through a yearly accounting. At the end, he will file a final accounting and proposed distribution. The judge will review the information and determine if all actions are in order, and if there are no objections, the judge will sign a Judgment of Possession transferring title to the property. The estate will then be closed.
The Value of Working with an Attorney During Probate
The probate court process can be lengthy and complex or short and straightforward depending on the size of the decedent’s estate, the validity or existence of their will, proper and prompt filing of information, and heir and creditor challenges to the estate. Having an attorney assist you with your estate plan can help mitigate the risk of challenges later. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help your planning needs to ensure your will won’t cost your family and loved ones time and money later.