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Settling an Estate


The laws regarding estates and estate administration can be complex in application and in the use of terminology. The general concepts and rules involved in the handling of estates from beginning to end are not usually understood or are misunderstood by most of us. Even the common terminology used in estate matters are mostly foreign concepts. The good news is that most of us never really need to understand the meanings of these specific terms and many other terms associated with estates, except to the extent that these terms apply to the work which must be done to finally settle an estate matter in order to place the living heirs into ownership of property left by a deceased person, and to deal with creditors, debts and expenses of an estate.

The current law requires a succession to be filed concerning every deceased person who owned property or had debts on the date of death. This process is generally and commonly referred to as a “succession” proceeding or “probate” process.

A “succession” or “probate” process follows along a path controlled by sets of distinct rules of legal procedures established by the legislature. Most of the current Louisiana rules and procedures have a very long history of development, mostly based on Roman, French and Spanish legal tradition. Before the establishment of Louisiana as a state, both France and Spain ruled the territory and they established laws regarding property ownership, community property, estates and transfers of ownership of property from deceased persons to their living heirs. Unlike the British tradition of laws commonly used in other areas of the United States, the French and Spanish legal traditions required that the property of a deceased person be inherited according to the rules of “forced heirship”. The rules required that direct descendants of deceased persons inherit the property of their deceased ancestors so that those descendants would receive at least a minimum percentage of the ancestor’s estates, hopefully ensuring, at least to some extent, that those living heirs would not become dependent upon the State for their future subsistence and care. Generally, property was handed down from parents to their children, and so on…

Of course, today, some of the laws regarding the transfers of property from a deceased person to the living descendants have changed in many perspectives, but some of these traditional essential principles have remained the same.

Most important to remember is the efficient and cost effective administration of an estate from start to finish depends upon good pre-planning. The laws relative to estates are complex and in order to gain the most advantage from these complex laws is to spend some time with an attorney well familiar and experienced with estate laws in order to develop a concrete estate plan in the form of testaments, various types of trusts, family partnerships or corporations, etc. These estate planning tools will ensure that your wishes are established in appropriate written form and carried out by the courts after a death. These devices can also be designed to also save time, cost and money in handling the affairs of the estate. Without a written testament in effect at the time of death the state’s laws will dictate how your property will be divided, and the default state rules will determine the manner in which your estate will procedurally be handled, which may increase the time it will take to settle the estate and perhaps greatly increase the costs of handling and concluding the estate as well.

Simple estates may be opened and finally closed with little effort and expense, while other, more complex estates with considerable assets or issues may take years to conclude. Many issues may arise during the estate process which will inevitably have to be dealt with or circumvented. Obviously, reduction of potential conflict amongst heirs has a direct impact upon how easy or difficult it may be to work through the estate processes.

“Clarity in drafting testaments or other estate planning devices can go a long way toward reducing conflict amongst heirs.”
— John Fitz-Gerald

Good information is key. Either interested family members or a select person may work with the estate attorney to gather all of the relevant information regarding the estate issues. Typically the person with whom the estate attorney works with is the person who will apply to the Court to be designated and appointed as an Executor of an estate. The Executor acts as the legal representative of the estate and has a duty to carry out the terms of a testament left by the deceased, or has a duty to ensure that any forced heirs succeed to their inheritance should a testament not exist.

It is of significant importance that complete information be provided to the estate attorney before beginning the estate settlement process. It is vitally important that all assets and debts of the deceased be identified. This will go a long way to eliminating the need to reopen a succession later to either add more property which needs to be divided or to deal with estate creditors whose debts have not been satisfied. It is important to not unduly delay beginning the estate process after the death of a loved one. I have found in my practice that it is usually easier to find and secure relevant information regarding the property, debts and charges against the estate when the estate matters are being dealt with in a timely manner. There is also the benefit of the remaining family members having fresh memories concerning the business and personal affairs of the deceased person. A significant passage of time from date of death until beginning the succession process usually works to the disadvantage of all involved. One would be well advised to start the succession process as soon as possible after the death of a loved one. Anyone faced with handling a loved one’s estate should try to get the process underway as soon as possible. One should allow enough time to pass after the death to allow most of the immediate grief from the loss to pass. Always be mindful, however, that allowing too much time to pass can become a detriment to a speedy resolution of the estate matter.

“Waiting years to start this process can have considerable detrimental effects for a variety of reasons.”
— John Fitz-Gerald

An experienced estate attorney should be consulted any time information is required on how to start the estate settlement process. They will be able to provide you with a comprehensive list of all information required throughout the process. The estate attorney should also be willing and able to provide competent legal advice regarding all issues which may come up during the process. Expect to work closely with the estate attorney and/or his staff in order to settle any and all estate issues as expeditiously as possible. Being able to rely confidently on the advice of the estate attorney will provide peace of mind throughout the entire process.

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