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.