Do You Have to Do Probate when Someone Dies?

POSTED ON: June 9, 2021

For most of us, the first time we ever thought about probating a will is when someone in our family has died. So, what does it mean to probate a will?

Do You Have to Do Probate when Someone Dies?

Probate is a Latin term meaning “to prove.” Legally, a deceased person may not own property, so the moment a person dies, the property they owned while living is in a legal state of limbo. The rightful owners must prove their ownership in court, explains the article “Wills and Probate” from Southlake Style. Probate refers to the legal process that recognizes a person’s death, proves whether or not a valid last will exists and who is entitled to assets the decedent owned while they were living.

The probate court oversees the payment of the decedent’s debts, as well as the distribution of their assets. The court’s role is to facilitate this process and protect the interests of all creditors and beneficiaries of the estate. The process is known as “probate administration.”

Having a last will and testament does not automatically transfer property. The last will and testament must be properly probated first. If there is a last will, the estate is described as “testate.” The last will must contain certain language and have been properly executed by the testator (the decedent).  In Louisiana, there are two valid will forms, the “statutory will” and the “olographic will.”

To be valid, the last will and testament must follow the laws of the State of Louisiana.  This is why a will in one state using that state’s form, may not be valid in Louisiana.

The probate court after someone dies must give its approval that the last will is valid as to form and confirm the executor is suited to perform their duties. Louisiana allows for independent administration as long as the decedent specified that he or she wished that independent administration take place.  Then, the court will appoint the administrator who submits an inventory or “descriptive list” of assets and liabilities. With independent administration, the executor will go on with no need for a probate judge’s approval to perform certain tasks, as long as the last will contains the specific language to qualify.

If there was no last will, the estate is considered to be “intestate” and the laws of Louisiana will determine who inherits what assets. The law relies on the relationship between the decedent and the genetic or bloodline family members. An estranged relative could end up with everything. The estate distribution is more likely to be challenged if there is no last will, causing additional family grief, stress and expenses.

The last will should name an executor or administrator to carry out the terms of the last will. The executor can be a family member or a trusted friend, as long as they are known to be honest and able to manage financial and legal transactions. Administering an estate takes time, depending upon the complexity of the estate and how the person managed the business side of their lives. The executor pays bills, may need to sell a home and also deals with any creditors.

The smart estate plan includes assets that are not transferrable by the last will. These are known as “non probate” assets after someone dies go directly to the heirs, if the beneficiary designation is properly done. They can include life insurance proceeds, pensions, annuities, 401(k)s, and IRAs, or any any asset with a beneficiary designation. However, keep in mind that most POD (“payable on death”) bank accounts do not fall under this category in Louisiana.  So take a look at that topic at this blog post, and be careful of POD account.  If all of the assets in an estate are non-probate assets, assets of the estate are easily and usually quickly distributed. Many people accomplish this through the use of a Living Trust.

In the event that a person dies without a Last Will and Testament, and they have under $125,000 in value of assets, the heirs may qualify to execute an “affidavit of small succession”.  Using this affidavit, the heirs can avoid probate.  Although the Affidavit of Small Succession is equally valid for all property in Louisiana, keep in mind that from a practical perspective most banks and credit unions will no honor an Affidavit of Small Succession.  A bank or credit union will typically want to receive a judge’s signature to transfer title to bank accounts.

Every person’s life is different, and so is their estate plan. Family dynamics, the amount of assets owned and how they are owned will impact how the estate is distributed. Start by meeting with an experienced estate planning attorney to prepare for the future. Find out if probate will have to be the outcome if someone in you family dies.  Call me today at (318) 588-8568 or (985) 264-9822 (cell) or BOOK A CALL to discuss more.

Reference: Southlake Style (May 17, 2021) “Wills and Probate”

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