LOUISIANA PROBATE, ESTATE AND TRUST ADMINISTRATION
HOW DOES PROBATE WORK?
There can be terrific grief and pain at the loss of a loved one. Beyond grief and pain, when you add external stresses to the equation you can have a disaster on your hands in very short order. Part of the responsibilities or duties of an executor or administrator of an estate can be to reduce the level of stress during the Louisiana probate process.
The fundamental duties of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate are the same as those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can.
Read on for some essential reminders about the Louisiana probate process and how representatives can assist with the process.
WHAT SHOULD I KNOW ABOUT THE LOUISIANA PROBATE PROCESS?
A personal representative is required to prepare and file a descriptive list and a list of claims after the representative is approved by the court. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued (and often appraised). The claims include debts due and owing to the estate (not debts the estate owes to another party). The descriptive list provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. [Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is filed late, the representative could be removed, which would slow down the process (and raise tempers).
One thing to realize if you are a beneficiary is that the gifts and bequests are not given out immediately after the funeral. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the representative must also keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper and sending written notice to known secured creditors. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. Louisiana law provides that certain creditors are in a preferred class to other creditors.
The representative should keep the legatees in the loop, to include providing each with notice that the will has been admitted to probate and by providing a copy of the will when requested. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the executor.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the Louisiana probate process.
As you can see, being a representative is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role of representative. The representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.
IT’S OKAY TO ASK FOR HELP.
So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the representative work in concert with Ted Vicknair, an experienced probate attorney to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines.