Both movable and immovable property can now be transferred by Affidavit if the succession is intestate and the decedent’s estate in Louisiana was valued at $125,000 or less at the time of death (or any value if the death occurred at least 20 years before the recording of the Affidavit for Small Succession).1 The immovable property does not have to be the decedent’s primary residence and does not even have to be residential property.

• 1La. C.C.P. arts. 3421, 3431. Different rules apply to out-of-state residents. Id. art. 3431(A).

The required information is set out in the statute and is generally the same information that would be contained in the documents of a court succession: date of death, marital status, domicile and last residence, spouse and family information, and the names and last known addresses of all the heirs.1 If any of the heirs died intestate without being put into legal possession of the property, include their information in the Affidavit and name the still living heirs who inherit through representation.

There should also be a listing of the decedent’s property, along with the values of the property.2 The legal description of any immovable property must be included.3 The heirs must swear under penalty of perjury that the information contained in the affidavit is true, correct, and complete to the best of their knowledge, information, and belief.4

A certified death certificate should be attached to the Affidavit.5

• 1La. C.C.P. art. 3432.
• 2Id.
• 3Id.
• 4La. C.C.P. art. 3432.
• 5La. C.C.P. art. 3434(C)(1). Act 44 of 2022 further simplified this procedure: “For recordation purposes, a photocopy of the certified death certificate may serve as, and take the place of, the certified copy of the death certificate.”

At least two persons, including the surviving spouse, must sign the Affidavit.1 If there is no surviving spouse, then at least two competent major heirs must sign.2 If the deceased had no surviving spouse and only one heir, the affidavit must also be signed by a second person who has actual knowledge of the matters stated therein.3 A natural tutor may also execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061.4

If there are any heirs who do not sign the Affidavit, the completed Affidavit must be mailed to their last known address(es), and they must be given at least 10 days to object.5 If any heir cannot be located after a diligent search, then that fact can be stated in the Affidavit. 

• 1La. C.C.P. art. 3432(A).
• 2Id.
• 3La. C.C.P. art. 3432(B).
• 4La. C.C.P. art. 3432(C).
• 5La. C.C.P. art. 3432(A)(4).

The Affidavit should be recorded in the conveyance records in every parish where the decedent owned immovable property.1  Affidavits should be recorded immediately so that the heirs will get notice of any adverse actions (e.g., code enforcement or tax sales) by the local parish governments. Certified copies of the Affidavit can be used as presumptive proof by any third party that the property has been transferred to the named heirs.2

• 1La. C.C.P. art. 3434(C)(1).
• 2La. C.C.P. art. 3434(C)(2).

If a succession is testate or is valued above $125,000, then a succession proceeding must be filed in court. Creditors of the succession or co-owners of succession property who are not the decedent’s heirs or legatees may also file to open a succession. The goal of opening a succession is to obtain a Judgment of Possession, which will recognize the lawful heirs and send them into possession of their portion of the decedent’s property. 

Many successions for indigent clients may be handled by an ex parte petition for possession when the decedent’s estate is “relatively free from debt.” In such cases, a petition for possession is filed on behalf of the surviving spouse and/or competent heirs.1 In uncontested testate successions, the petition for probate and possession can be combined in one pleading. 

In Louisiana, district courts have jurisdiction over succession proceedings; in Orleans Parish, the Civil District Court has jurisdiction.2 Venue is controlled by the decedent’s domicile at the time of death.3 A Petition for Possession must be filed in the district court for the parish where the decedent was domiciled at the time of death.4 If the decedent was not domiciled in Louisiana at the time of death, the succession may be opened in the district court of any parish where the decedent’s immovable property is located.5 For non-residents, there may be more than one possible venue if the decedent owned property in more than one parish.

The Affidavit of Death, Domicile, and Heirship requires only the signatures of two persons with knowledge, typically the petitioner and a second heir.6 In the absence of a written renunciation, a successor is presumed to accept succession rights.7 For these reasons, it is common practice to file ex parte succession proceedings with the signatures of two persons, unless the attorney knows that a successor wishes to renounce or a successor is absent and cannot be located.

• 1For procedures to place the surviving spouse and/or heirs in possession without an administration, see La. C.C.P. arts. 3001–3008 (intestate successions) and La. C.C.P. arts. 3031–3035 (testate successions).
• 2La. C.C.P. art. 2811.
• 3Id.
• 4Id.
• 5Id.
• 6La. C.C.P. arts. 2821–2822.
• 7La. C.C. art. 962.

In an intestate succession, a petition for possession may send the heirs into possession by the ex parte petition of any of the following:

• All the competent heirs if all competent heirs accept the succession and the succession is relatively free of debt.1
• The surviving spouse in community with the decedent if all the heirs are incompetent and no legal representative has been appointed for some or all of the heirs2
• The legal representative of the incompetent heirs if all of the heirs are incompetent and a legal representative has been appointed.3

A surviving spouse in community with an intestate decedent can also use an ex parte petition for possession to be recognized as the owner of the survivor’s undivided one-half interest in the community property and as the usufructuary of the other one-half.4

If a competent heir cannot be located, the other heirs, including the absentee heir, can be sent into possession after appointment of an attorney to represent the absentee and a contradictory rule against the absentee’s attorney.5

• 1La. C.C.P. arts. 3001, 3004.
• 2La. C.C.P. art. 3004.
• 3Id.
• 4La. C.C.P. art. 3001.
• 5La. C.C.P. art. 3006.

In a testate succession, a petition for probate and possession may send the legatees into possession on the ex parte petition of all legatees if (1) each legatee is competent or acting through a legal representative; (2) each legatee accepts the succession; and (3) none of the creditors has demanded administration.1

As with intestate succession, a surviving spouse may use the petition to obtain recognition of rights in community property.2 Wills must be probated within 5 years of the judicial opening of a succession.3

If the will named a succession representative, that person must join in the petition for possession in order for judgment to be rendered ex parte.4 A simple solution to this requirement is to have the succession representative sign either the verification of the Petition for Possession or an affidavit declining the appointment.

• 1La. C.C.P. art. 3031.
• 2See La. C.C.P. art. 3031(B).
• 3La. C.C.P. art. 2893.
• 4La. C.C.P. art. 3033.

The Petition for Possession must be verified and include allegations establishing the decedent’s date of death and domicile at the time of death, indicating whether the succession is testate or intestate, and identifying the heirs or legatees.1 The original testament should be attached (if there is one) and proof of the testament, if necessary. The Petition should allege that the succession is relatively free from debt and that all of the successors accept the succession.2 Before filing the petition, you should obtain written consent from the other heirs that they have accepted the succession.

• 1La. C.C.P. arts. 3001–3002, 3031–3032.
• 2Id.

This Affidavit is the evidence to prove the allegations of the Petition for Possession.1 It must be signed by at least two competent affiants who personally knew the decedent and have personal knowledge of the facts.2 The Affidavit echoes the facts alleged in the Petition for Possession. The Affidavit must state the decedent’s death, marriages, and all other facts necessary to establish jurisdiction and decedent’s relationship to the heirs.3

The law does not require proof by death certificate.4 The Affidavit is sufficient proof. It is, however, good practice to ask the client for a death certificate, an obituary, or funeral program to ensure that all heirs are included in the Petition for Possession.

• 1La. C.C.P. arts. 2821–2822.
• 2La. C.C.P. art. 2822.
• 3La. C.C.P. art. 2821.
• 4Id.

The Sworn Descriptive Kist must list all assets of the decedent or in which the decedent owned an interest at the time of death.1 Report the fair market value of the decedent’s property at the time of death. The List must be sworn to by an heir, legatee, or other interested party.2

For a married decedent, the property usually consists of both separate property and a one-half share of the community property. Divorced decedents may also co-own former community property that has not been partitioned.

One of the more common assets is immovable property. The legal description of the property should be included in the Descriptive List; a street address is not adequate. Make sure to copy the legal description exactly from previous conveyances or mortgages. Changes in the legal description of immovable property can cause confusion about which property is being identified and create a “cloud” over the title.

The Sworn Descriptive List must also include: the amount of money in bank or credit union accounts, vehicles, trailers, boats, stocks, bonds, cash, mortgages, notes, and other miscellaneous property of significant value (e.g., jewelry, household goods and personal effects,, collections, livestock, farm products and growing crops, farm machinery, royalties, rights, claims, debts due the decedent, interest in partnerships, interests in business, cash surrender value of insurance on the life of another, accrued dividends at date of death, returned premiums of insurance policies). 

Other types of assets are distributed “outside” of the succession and are not included in the Descriptive List:

1. Life insurance unless payable to the estate.3 Life insurance proceeds are also exempt from forced heirs’ claims.

2. Annuities payable to a named beneficiary.4 However, an annuity acquired during the existence of a community property regime is includable in the decedent’s estate to calculate the interest of the surviving spouse in community. Only non-retirement annuities are subject to forced heir claims.5

3. IRA and Simplified Employee Pension Plan (SEP). However, if a non-participant spouse has a community property claim to the surviving spouse’s IRA or SEP, that claim should be listed in the sworn descriptive list. 

4. Retirement or pension plans. These plans are generally payable to a beneficiary If the plan directs the proceeds to the estate, the pension plan is an asset of the estate.

5. U.S Savings Bonds. Ownership is determined by federal law, not Louisiana law.

6. Bank account with co-depositor. Do not include in the estate if these funds were actually the property of the co-depositor.

Liabilities can also be listed: expenses incidental to the last illness of the decedent that were due and unpaid at the time of death (can be shown as net after anticipated insurance reimbursement), property taxes accrued prior to the date of the decedent’s death, notes unsecured by a mortgage or other lien, and any income taxes accrued and unpaid at date of death. If a community regime existed at the time of death, these debts are considered community debts and are only one-half deductible.

• 1La. C.C.P. art. 2952.
• 2Id.
• 3La. R.S. 22:912(A)–(B).
• 4La. R.S. 22:912(C).
• 5La. C.C. art. 1505(C).

Any acts of renunciation or donation should be executed in the proper form and filed along with the other documents.

The Judgment of Possession will declare that the decedent’s heirs or legatees are entitled to be placed in possession of the decedent’s property.1 The Judgment will recognize the successors as the owners of the property they inherit and can be relied upon by third parties in determining ownership.2

The Judgment should lay out the estate’s assets (including the legal description of any immovable property), name each successor, and list the property or the proportion that each successor inherits. If any usufructs have arisen from the succession, they should also be listed.  

The Judgment of Possession should include the last known address of at least one of the heirs, legatees or surviving spouse.3

For testate successions, there must also be a court order that probates the testament. Some attorneys include this language in the Judgment of Possession because filing fees are often determined by the number of pages and orders. After July 1, 1999, notarial and statutory wills are self-proving. An olographic will still needs proof of the testator’s handwriting, which can be made by an affidavit unless the judge orders oral testimony.4

Neither the clients nor the attorney must appear before a judge to present all of the required documents. The pleadings are filed with the Clerk of Court and then presented by the Clerk to a judge for consideration and signing of the Judgment of Possession. 

• 1La. C.C.P. art. 3061.
• 2La. C.C.P. art. 3062.
• 3La. C.C.P. art. 3061(B).
• 4La. C.C.P. art. 2883.