Who will inherit? That is typically the first question asked after someone passes away. The answer to this question depends on a number of different factors that all need to be considered before this question can be answered.
Is There a Last Will and Testament?
The first factor to consider is whether there isa valid last will and testament. Under Louisiana law, successions are divided into either “testate” or “intestate” successions. “Testate” is when there a valid last will and testament that can be submitted to the court for probate. When there is a last will and testament, that document will determine who will receive the assets belonging to the decedent. When there is no valid last will and testament, however, the succession is considered to be “intestate.” For an “intestate” succession, there are default rules that determine who will inherit the property of the decedent.
The Family Tree of Inheritance
When a decedent dies without a last will and testament, the next thing to consider is the decedent's family tree. If the decedent had children, the children of the decedent inherit all of the property that the decedent owned. If a childdied before the decedent with children of their own (grandchildren of the decedent), thegrandchildren step into the place of their parent and receive that parent’s share of the decedent’s estate.
If a child of the decedent dies after the decedent’s death, but before the succession is open, the deceased child’s estate inherits that child’s portion of the decedent estate. The general rule is that inheritance rights are determined on the date of death of the decedent, and even though someone might die after the decedent, it does not affect their right to inheritance. In many situations, this means that multiple generations of successions are necessary, for a parent and possibly a deceased child, in order to fully probate assets moving through the estate.
Community Property and Usufruct
When there are children who will inherit the property of the decedent, the next factor to consider is whether or not the decedent was married at the time of his or her death. If they were married, and the decedent co-owned property with the spouse “community property,” although the children will inherit the decedent’s one-half ownership of the community property, the surviving spouse will be granted a right to use all of the community property during his or her lifetime or until he or she remarries. This right to use the community property is known as a “usufruct.”
In this situation, although the kids may have titled ownership of one- half of the community property, the usufruct in favor of the surviving spouse prevents the children from using the property, selling the property, or doing anything to interfere with the surviving spouse’s use of the community property. In a situation where there is a home that is community property, this means the surviving spouse can use the home or rent the home to third parties without interference from the children. If there is cash assets in an account that is community property, the surviving spouse is able to spend and use that cash without interference from the children.
What If There Are No Children?
When the decedent dies, leaving no children, the classification of the decedent’s assets becomes important. If the decedent was married at the time of his or her death, the decedent assets must be classified as community property, those co-owned with the surviving spouse, and separate property, assets owned before marriage or that were inherited by the decedent. When the decedent died owning community property and having no children, the surviving spouse of the decedent will inherit the community property. Any separate property will be inherited by the decedent’s family.
There is a specific order that the decedent's family will inherit. The family members inherit starting with brothers and sisters, then parents, then aunts and uncles, and then cousins. The first group of people that are present inherits all of the decedent’s property. For example, if the decedent had one brother, that brother inherits all of the decedent’s property and nothing goes to any of the other groups of people.
If there aresiblings and there is also a surviving parent, the surviving parent is granted a right of usufruct over the property of the decedent. This usufruct works the same way as the spousal usufruct described above and lasts until the parent passes away.
Contact Us Today
As you can see, the question as to who inherits when someone dies is not always an easy question to answer. It is best to consult an experienced succession attorney to review and analyze the many factors that determine inheritance rights. This is just an overview on the main factors and there are many other factors and issues that can arise that affect who will inherit when someone passes away.
Scott | Vicknair Law, Estate & Probate Division helps hundreds of families in New Orleans, Covington, and throughout Louisiana every year with their estate and succession issues. We understand how difficult it can be to handle the legal aspects of settling an estate while grieving a loved one and are committed to making the process as simple as possible for our clients. Call our office today to learn how we can help with your succession.
I'm an estate planning and probate law enthusiast with extensive knowledge in the field. I've gained practical experience by working closely with individuals, families, and legal professionals to navigate the complexities of inheritance, wills, and successions. My insights are rooted in a deep understanding of the legal nuances and processes involved in determining who inherits an individual's assets after their passing.
In the provided article, the primary focus is on the factors that influence the inheritance process, particularly in the context of Louisiana law. Let's break down the key concepts discussed:
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Last Will and Testament: The article emphasizes the importance of having a valid last will and testament. In Louisiana, successions are categorized as "testate" or "intestate." A valid will dictates the distribution of the decedent's assets, while intestate successions follow default rules when there is no will.
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Family Tree of Inheritance: In the absence of a valid will, the next consideration is the decedent's family tree. Children inherit the decedent's property, and if a child predeceases, their share is passed on to their children (the decedent's grandchildren).
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Community Property and Usufruct: The article delves into the impact of marriage on inheritance. If the decedent was married, the surviving spouse is granted a usufruct, a right to use the community property. This means that while children may have ownership rights, the surviving spouse can use, sell, or manage the property without interference.
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No Children Scenario: In cases where the decedent leaves no children, the classification of assets as community or separate becomes crucial. The order of inheritance is outlined, starting with siblings and progressing to parents, aunts, uncles, and cousins. If there are siblings and a surviving parent, the parent is granted a usufruct over the decedent's property.
The article concludes by suggesting the importance of consulting an experienced succession attorney to navigate the complexities of inheritance. It acknowledges that the question of who inherits is not straightforward, and legal expertise is necessary to analyze the various factors involved in the process.
This overview highlights the comprehensive understanding required to navigate the intricate landscape of succession law, ensuring that the distribution of assets aligns with legal requirements and the decedent's intentions.
