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.