Descendants are the decedent’s children or their representatives1  and take to the exclusion of other heirs.2

Children adopted through a formal adoption proceeding have the same inheritance rights as the other children of the deceased adoptive parent.3  An adopted child may also inherit from the child’s natural parents and their relatives; however, natural parents and relatives cannot inherit from the surrendered child.4  Stepchildren do not inherit unless they were formally adopted by the decedent.

A child born outside of marriage inherits to the same extent as a child born to married parents only if the child is formally acknowledged by authentic act or by a judgment in a timely-initiated filiation proceeding.5  Since 2016, signing a child’s birth certificate no longer qualifies as an acknowledgement.6

If you are faced with a situation involving a child born outside of marriage, search the public records for an acknowledgement of paternity or for proceedings ordering the father to pay child support, which may involve such an acknowledgment. Acknowledgments may also occur in divorce or other succession proceedings. A donation inter vivos may also meet the requirements of an acknowledgment.7

To establish filiation for purposes of succession, an unacknowledged child born outside of marriage must institute an action no later than 1 year after the father’s death.8  All relevant evidence is admissible to prove paternity, including lab tests, acts of informal acknowledgment by the father, and cohabitation of the father and mother at the time of conception.

Under prior law, the period to file a filiation action was limited to either 1 year after the parent’s death or 19 years after the child’s birth, whichever occurred first. Unacknowledged children’s filiation claims that were time-barred by the age of the child under prior law remain time-barred.9  Thus, even if the parent died after the effective date of the new law, if the child was over 19 years of age on June 29, 2005, the child cannot initiate a filiation action.

• 1For further discussion of representation, see Section 5.2.
• 2La. C.C. art. 888.
• 3La. C.C. art. 199.
• 4Id.
• 5See La. C.C. arts. 195–198.
• 6Act of June 2, 2016, No. 309, § 196, effective August 1, 2016.
• 7See In re Succession of Dangerfield, 2016-0293 (La. App. 1 Cir. 10/31/16), 207 So. 3d 427.
• 8La. C.C. art. 197.
• 9See In re Succession of Smith, 09-969 (La. App. 3 Cir. 02/03/10), 29 So. 3d 723; In re Succession of Faget, 2005-1434 (La. App. 1 Cir. 6/9/06), 938 So. 2d 1003; Succession of McKay, 2005-603 (La. App. 3 Cir. 2/1/06), 921 So. 2d 1219.

If the deceased leaves no descendants but is survived by a father, mother, or both, and by a brother or sister, or both, or descendants from them, the siblings (or their descendants) succeed to the deceased’s separate property subject to a usufruct in favor of the surviving parent(s).1

If both parents survive the deceased, the usufruct is joint and successive, which means that when one parent subsequently dies, the entire usufruct accrues to the survivor-parent and the siblings (or their descendants) remain naked owners with shares as identified below.2

If no parent survives the deceased, then the entire estate goes to the siblings (or their descendants) to the exclusion of all others.3

If there is more than one sibling, all siblings share equally.4  If a sibling predeceases the decedent, that sibling’s share goes to that sibling’s descendants by representation.5  Special rules apply to siblings related to the decedent by half-blood. In that case, the estate is equally divided between the deceased’s paternal and maternal lines. Siblings fully related by blood take in both lines, and those related by half-blood take only in the line shared with the deceased.

If the deceased had no full siblings and the deceased’s half siblings were in one line only, they take the entirety to the exclusion of all relations in the other line.6

If there are no siblings (or their descendants), the deceased’s parents inherit the separate property.7

• 1La. C.C. art. 891.
• 2Id.
• 3La. C.C. art. 892.
• 4La. C.C. art. 893.
• 5La. C.C. art. 882. For further discussion of representation, see Section 5.2.
• 6La. C.C. art. 893.
• 7La. C.C. art. 892.

If the deceased does not leave descendants, parents, or siblings (or descendants from them), a surviving spouse, if not judicially separated, succeeds to the deceased’s separate property to the exclusion of other ascendants and collaterals.1

A “judicially separated” but not divorced spouse is rare. Under La. C.C. art. 2374, a spouse may obtain a Judgment of Separation of Property for specific reasons. For example, when a Petition for Divorce has been filed, either spouse may obtain a Judgment of Separation of Property by a rule to show cause and upon proof that the spouses have lived separate and apart without reconciliation for thirty days from the date of the filing of the Petition for Divorce.2  However, should the spouses reconcile, the community regime is re-established (the same effect as a reconciliation after a judgment of separation from bed and board).3  A spouse can also obtain a Judgment of Separation of Property if the spouses have lived separate and apart continuously for a period of six months.4

• 1La. C.C. art. 894.
• 2La. C.C. art. 2374(C).
• 3La. C.C. art. 2375(B).
• 4La. C.C. art. 2374(D).

If a deceased does not leave descendants, parents, siblings (or their descendants), or a spouse not judicially separated, more remote ascendants succeed to the deceased’s separate property.1  The ascendants in the nearest degree take to the exclusion of more remote ascendants.2  If there are ascendants of the same degree in both the paternal and maternal lines, the property is divided into two equal shares, one of which goes to the ascendants on the paternal side and the other of which goes to the ascendants on the maternal side, whether the number of ascendants on each side be equal or not.3  In this case, the ascendants in each line inherit by heads.4

• 1La. C.C. art. 895.
• 2Id.
• 3Id.
• 4Id.

If the deceased has no surviving descendants, parents, siblings (or their descendants), surviving spouse not judicially separated, or ascendants, more remote collaterals succeed to the deceased’s separate property.1  Among collateral relatives, the nearest in degree excludes all others.2  If there are several in the same degree, they share equally and by heads.3

• 1La. C.C. art. 896.
• 2Id.
• 3Id.

If there are no heirs in any of the preceding classes, the estate of the deceased belongs to the state.1  This situation is extremely rare.

• 1La. C.C. art. 902.

There are two kinds of donations. A donation inter vivos (between living persons) is an act by which the donor divests ownership of a thing, at present and irrevocably, in favor of a donee who accepts it.1  A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which the donor disposes of the whole or a part of the donor’s property, and which is revocable.2

• 1La. C.C. art. 1468.
• 2La. C.C. art. 1469.

A person of the age of majority can give via donation inter vivos and mortis causa.1  A minor under the age of sixteen years does not have capacity to donate either inter vivos or mortis causa, except in favor of a spouse or children.2  A minor who has attained the age of sixteen has capacity to make a donation mortis causa in favor of any person and a donation inter vivos in favor of a spouse or children.3

To have capacity to donate inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition being made.4  Capacity to donate mortis causa must exist at the time the testator executes the testament.5  A person who challenges a testator’s capacity must prove by clear and convincing evidence that the testator lacked capacity when the will was executed.6  Special rules apply to full and limited interdicts.7

• 1La. C.C. art. 1470.
• 2La. C.C. art. 1476.
• 3Id.
• 4La. C.C. art. 1477.
• 5La. C.C. art. 1471.
• 6La. C.C. art. 1482(A).
• 7La. C.C. art. 1482(B)–(C).

All persons have capacity to receive donations inter vivos and mortis causa, except as expressly provided by law.1  The capacity to receive a donation inter vivos must exist at the time the donee accepts the donation.2  Capacity to receive a donation mortis causa must exist at the time of the testator’s death.3  When a donation depends on fulfillment of a suspensive condition, the donee must have capacity to receive at the time the condition is fulfilled.4

The Civil Code has particular provisions for unborn children. To be capable of receiving by donation inter vivos, an unborn child must be in utero at the time the donation is made.5  To be capable of receiving by donation mortis causa, an unborn child must be in utero at the time of the testator’s death.6  In either case, the donation has effect only if the child is born alive.7

• 1La. C.C. art. 1470.
• 2La. C.C. art. 1472.
• 3Id.
• 4La. C.C. art. 1473.
• 5La. C.C. art. 1474.
• 6Id.
• 7Id.

A donation inter vivos is without effect unless and until accepted by the donee during the donor’s lifetime.1  If the donee is of full age, the acceptance may be made by the donee or by a mandatory having power to accept the donation.2  Gifts to an unemancipated minor may be accepted by a parent or other ascendant or by the minor’s tutor, even if the person who accepts is also the donor.3

• 1La. C.C. art. 1544.
• 2La. C.C. art. 1545.
• 3La. C.C. art. 1548.

For a donation to be valid, (1) the donor and donee must have capacity to give and receive; (2) the requisite formalities must be followed; and (3) the donation must not violate a substantive limit on donations.

Various grounds may render a donation null:

• Donation impoverishes donor.1
• Donation lacks proper form or the donee fails to accept.2
• Donation procured through fraud, duress, or undue influence.3
• Donee is incapable of receiving.4  
• Donation is of property that does not exist at the time of the donation.5
• Donation conditional on will of the donor.6
• Donation conditioned on paying debts and charges other than those existing at the time of the donation.7

To annul a donation on the basis of undue influence, one must show that the donee’s influence was so substantial that the donee substituted his or her own volition for that of the donor.8  However, if the evidence shows that the execution of the testament was well within the discretion of the testator, the court should not find that the testator’s volition has been replaced by that of the donee.9      

If a person commits fraud or exercises duress or unduly influences a donor, or procures an appointment by such means, that person cannot serve or continue to serve as an executor, trustee, attorney, or other fiduciary even if so designated in a testament or act of donation.10

• 1La. C.C. art. 1498.
• 2In re Succession of Jones, 46,904 (La. App. 2 Cir. 1/25/12), 86 So. 3d 25.
• 3La. C.C. art. 1480.
• 4La. C.C. art. 1475.
• 5La. C.C. art. 1528.
• 6La. C.C. art. 1529.
• 7La. C.C. art. 1530.
• 8La. C.C. art. 1479.
• 9Succession of Cole, 618 So. 2d 554 (La. App. 4 Cir. 1993).
• 10La. C.C. art. 1481.

A will is the voice of the testator—the deceased. It determines the disposition of the testator’s property at death. If a person makes a will, the succession will be testate. Only one person may execute a testament in the same instrument.1

Prior to 1999 there were seven different types of wills. In 1999, the Louisiana Legislature narrowed the list to only two: olographic and notarial testaments.2  Wills drafted before 1998 that were valid under those rules, remain still valid.3  A will executed in another state and valid under that state’s law will be recognized by Louisiana if the will was in writing and subscribed by the testator.4

The two kinds of wills have specific formal requirements. Failure to adhere to these formalities  may invalidate the will, causing the succession to go intestate. If an invalid will has been probated, a petition to annul the testament may be filed.5

• 1La. C.C. art. 1571.
• 2La. C.C. art. 1574.
• 3La. R.S. 9:2440.
• 4La. R.S. 9:2401.
• 5La. C.C.P. art. 2931.

An olographic will is one entirely written, dated, and signed in the testator’s handwriting.1  The date may appear anywhere in the testament.2  The testator’s name must be signed at the end of the testament.3  The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.4  Additions and deletions on the testament may be given effect only if made by the hand of the testator.5  If anything is written by the testator after the signature, the testament is not made invalid, and a court may consider such writing as part of the testament.6  Olographic testaments have no other formal requirements.7

Over the years, the courts have lessened the formalities of olographic wills, e.g., accepting slash dates instead of writing out the date.8  An olographic will may be written in part pencil and ink.9  The entire olographic will does not have to be written on the same date.10   But, the basic formal requisites have remained in place, i.e., a valid olographic testament must be entirely written, dated, and signed in the testator’s handwriting.11

• 1La. C.C. art. 1575(A).
• 2Id.
• 3Id.
• 4Id.
• 5La. C.C. art. 1575(B).
• 6La. C.C. art. 1575(A).
• 7Id.
• 8Succession of Boyd, 306 So. 2d 687 (La. 1975).
• 9Succession of Smart, 36 So. 2d 639 (La. 1948).
• 10Oroszy v. Burkard, 158 So. 2d 405 (La. App. 3 Cir. 1963).
• 11Succession of Angele, 546 So. 2d 262 (La. App. 1 Cir. 1989) (holding that a will typewritten and signed by the testator was not valid and rejecting the argument that the term “written” was broad enough to include “typewritten” wills).

To probate an olographic will, two witnesses must testify that the testament was entirely written, dated, and signed in the testator’s handwriting.1   The jurisprudence interpreting La. C.C.P. art. 2883 has held that the phrase “credible witness” includes persons who are familiar with the testator’s handwriting as well as handwriting experts.2

• 1La. C.C.P. art. 2883; Succession of Calhoun, 28,233 (La. App. 2 Cir. 04/03/96), 674 So. 2d 989.
• 2In re Succession of Jones, 356 So. 2d 80 (La. App. 1 Cir. 1978); Succession of Lirette, 5 So. 2d 197 (La. App. 1 Cir. 1941).

Sometimes a testator may draft a will on a paper bearing preprinted extraneous material such as a personal or business letterhead. A letterhead will not defeat the formal requisites of an olographic will provided that the testament itself is entirely written, dated, and signed in the testator’s handwriting. Courts have ignored printed words whose presence on the document is incidental. An exception has evolved with respect to partially printed dates. To uphold a will where a portion of the date was printed, the handwritten portion of the date must be sufficient to be certain of the date when the printed numbers are ignored.1  In other words, the ignored numerals must not be essential to a determination of the date.

The language used in the will must also reflect animus testandi.2  Even if a document has expressions that reflect an intent to direct the division of the author’s property upon the author’s death, the words must signify bequests and that the testator intends that “very paper to be his will.”3  For instance, if a testator directs a person to sell the testator’s home, but does not bequeath the sale proceeds, the directive is deficient as a legacy. The testator can direct heirs to divide the contents of a home among themselves, to use life insurance money for the testator’s funeral, and to pay debts from the estate. The testator can also grant the beneficiaries the power to manage the testator’s debts and “full usage of the money” in an account “to solve what problems they encounter.” Nevertheless, if there is no disposition of property to a person, the document fails to be a testament.

• 1Succession of Heinemann, 136 So. 2d 51 (La. 1931).
• 2In re Succession of Plummer, 37,243 (La. App. 2 Cir. 05/14/03), 847 So. 2d 185.
• 3Id.

A notarial testament must be in writing and be executed according to the formalities in Civil Code Articles 1577–1580.1.1  For a testator that knows how to read and to sign his or her name and is physically able to do both, there are four requirements:

1. The testator must execute the testament in the presence of a notary and two competent witnesses.

2. The testator must declare or signify that the instrument is the testator’s testament.

3. The testator must sign the testator’s name at the end of the testament and on each other separate page.

4. In the presence of the testator and each other, the notary and the witnesses must sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____day of ________, ____.” This is called an attestation clause.2   

There are different procedures and attestation clauses for (1) persons who are physically unable to sign their names, (2) persons unable to read, (3) persons who are blind, and (4) persons who are deaf or deaf and blind.3  For example, if the testator does not know how to read or cannot read due to a physically impairment, the testament must be read aloud, and the witnesses must follow the reading on copies of the testament.4

Failing to incorporate the required attestation clause or follow the required formalities may invalidate a purported testament. However, in 2021, the Louisiana Supreme Court held that courts must determine if a notarial will, with all formalities and evidence taken into consideration, reflects that the testator was sufficiently protected against the risk of fraud.5  A dissent in a subsequent case noted the potential negative ramifications of this ruling: “[T]he ‘attestation clause’ has become meaningless. All testaments must now be litigated to determine if there was fraud, or even just to determine how many pages are contained in the testament.”6  Therefore, despite these recent decisions, the better course is to follow all of the codal requirements.

• 1La. C.C. art. 1576.
• 2La. C.C. art. 1577.
• 3See La. C.C. arts. 1578–1580.1.
• 4La. C.C. art. 1579.
• 5Succession of Liner, 2019-02011 (La. 06/30/21), 320 So. 3d 1133; see also Succession of McKlinski, 2021-0369 (La. App. 4 Cir. 11/10/21), 331 So. 3d 414.
• 6In re Succession of Allen, 2020-00653 (La. 09/27/21), 324 So. 3d 79.

Witnesses to a notarial testament must be competent. The following render a person incompetent to serve as a witness: (1) insanity; (2) blindness; (3) being under the age of sixteen; (4) being unable to sign his or her name; or (5) being unable to perform the special duties of a witness when the testator is unable to read.1

Persons should not be witnesses if they are legatees since their legacy will be invalidated.2  The fact that a witness is a legatee does not invalidate the entire testament. In that case, the legacy to the witness is invalid.3  However, if the witness would be an heir in intestacy, the witness may receive the lesser of the witness’ intestate share or the legacy in the testament.4  Similarly, if a legatee’s spouse is a witness to a testament, the legacy to the witness’ spouse is invalid, but, if the spouse would be an heir by intestacy, the spouse may receive the lesser of the spouse’s intestate share or the legacy in the testament.5  No such provision is made for notaries; a legacy to the notary is invalid.

An executor or attorney not otherwise named as a legatee may be a witness. The designation of a succession representative or a trustee, or an attorney for either of them, is not a legacy.6  The notary may be named as attorney, executor, or trustee under the will and still be the officiating notary. If the testament names an attorney to handle the succession, the executor or heirs are not required to use that attorney.7  The executor or heirs can choose to use another attorney, and the attorney named in the will is under no obligation to handle the succession.

• 1La. C.C. art. 1581.
• 2La. C.C. art. 1582.
• 3Id.
• 4Id.
• 5La. C.C. art. 1582.1.
• 6La. C.C. art. 1583.
• 7Succession of Wallace, 574 So. 2d 348 (La. 1991).

A testator may revoke a will at any time.1 The right of revocation may not be renounced.2 Revocation may be express or tacit. Express revocation occurs when a testator executes a new will or adds a codicil or change, thereby revoking a prior will or particular disposition.3 Tacit revocation occurs when a testator disposes of particular property during life, i.e., selling a home or car that had been left to legatees in a will.4

• 1La. C.C. art. 1606.
• 2Id.
• 3La. C.C. arts. 1607–1608.
• 4La. C.C. art. 1608(3).

Revocation of an entire testament occurs when the testator does any of the following:

• Physically destroys the testament, or has it destroyed at his direction.
• Declares a revocation in one of the forms prescribed for testaments or in an authentic act. 
• Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in the testator’s own handwriting.
• Destroys one of multiple wills.1
• Destroy or revokes a second will; if the first will was not destroyed, it is revived.2

• 1Succession of Talbot, 530 So. 2d 1132 (La. 1988).
• 2La. C.C. art. 1607.

A testator can can revoke a testamentary provision in the following ways:

• Declaring the revocation in one of the forms prescribed for testaments.
• Making a subsequent incompatible testamentary disposition or provision.
• Making a subsequent inter vivos disposition of the thing that is the object of the legacy and not reacquiring the thing.
• Clearly revoking the provision or legacy by a signed writing on the testament itself.1

A testator's divorce from a legatee after the execution of the testament also revokes the legacy unless the testator has remarried the legatee following the divorce or the testament provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.2

Revocation of legacies in an olographic will may also occur by physical destruction of the testament or by drawing lines through or erasing portions of it, provided that the lines or erasures were made by the hand of the testator.3

• 1La. C.C. art. 1608.
• 2Id.
• 3Oroszy v. Burkard, 158 So. 2d 405 (La. App. 3 Cir. 1953) (“[A] testator, by drawing lines through words or over some writing in his olographic will, may cancel portions of the will or he may revoke it in toto, provided that the evidence establishes that the lines were drawn by the hand of the testator and that in doing so the testator actually intended to cancel or revoke all or specific portions of the will.”).

Revocations of testaments, legacies, or other testamentary provisions may be revoked prior to a testator’s death unless the revocation was made by physical destruction, subsequent inter vivos donation, or divorce.1

• 1La. C.C. art. 1609.

Forced heirship is one of the legacies of Louisiana’s civil law history. For many years, all children, of whatever age, were forced heirs, meaning that they could not be deprived of a portion of their parents’ estates, even if a testator/parent did not mention the children in a testament and left all of the parent’s property to others. This amount reserved to a forced heir is referred to as the legitime or forced portion. Unless there is a just cause to disinherit a forced heir, the legitime cannot be disposed of to others.1

The Louisiana Legislature attempted to change the forced heirship laws several times in the early 1990s, but these changes were declared unconstitutional by the Louisiana Supreme Court. By constitutional amendment, the law was successfully changed on January 1, 1996 to limit those who qualify as forced heirs.2

Forced heirs are descendants of the first degree who, at the time of the decedent’s death, are (1) twenty-three years of age or younger (i.e., right up to the twenty-fourth birthday); or (2) permanently incapable of taking care of their persons or administering their estates at the time of the decedent’s death because of a physical or mental infirmity, or an inherited, incurable condition, supported by medical records, that may render them incapable of taking care of their persons or estates in the future.3  Some consider this latter clause to be an open invitation to litigation. Certainly, heirs with severe mental illness would be natural beneficiaries of this clause. Reported cases have held that persons with bipolar disorder may meet the statutory definition of “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent”. 4

When a testator died or executed the testament to be probated before the new law came into effect, complex rules determine whether the new law or prior law governs. If the decedent died before January 1, 1996 or executed his last will before January 1, 1996 and had children over 23 years old, you should review the discussion in L. Carman, Louisiana Successions §§ 2.49–.50. For pre-January 1, 1996 wills where the decedent died in 1996 or later, the testator’s intent as to a forced heir portion is determined on an ad hoc basis. These older children may qualify as forced heirs if the pre-January 1, 1996 law governs or if a pre-January 1, 1996 will is interpreted to give a forced portion.5

When a descendant of the first degree predeceases the decedent, representation takes place for forced heirship only (1) if said descendant was younger than 24 years of age at the decedent’s death; or (2) if a child of said descendant, because of mental incapacity or physical infirmity, is permanently incapable of taking care of his or her person or administering his or her estate at the time of the decedent’s death, or that child has an inherited, incurable condition, supported by medical records, that may cause the child to be incapable of taking care of the child’s person or estate in the future, regardless of the age of the descendant of the first degree at the time of the decedent’s death.6

• 1La. C.C. art. 1494. For the causes of disinhersion, see La. C.C. arts. 1617–1626.
• 2La. Const. art. XII, § 5.
• 3La. C.C. art. 1493.
• 4See, e.g., In re Succession of Wilkins, 2019-1060 (La. App. 1 Cir. 05/11/20), 303 So. 3d 321; Stewart v. Estate of Stewart, 07-333 (La. App. 3 Cir. 10/03/07), 966 So.2d 1241; Succession of Ardoin, 07-43 (La. App. 3 Cir. 05/30/07), 957 So. 2d 937.
• 5For a discussion of this problem, see 10 La. Civ. L. Treatise, Successions & Donations § 10:15 and cases discussed therein.
• 6La. C.C. art. 1493(B).

The portion reserved for the forced heirs is called the forced portion, or legitime, and the remainder is called the disposable portion.1 Since 1982, donations inter vivos and mortis causa may not exceed 3/4ths of the donor’s property (if the donor leaves one forced heir at death) and 1/2 if the donor leaves two or more forced heirs.2 Be sure to apply the forced heirship law in effect at the time of the decedent’s death.3 Prior to 1982, the forced portion was 1/4 for 1 child, 1/2 for 2 children, and 2/3 for 3 or more children. 

Nevertheless, if the fraction that would otherwise be used to calculate the legitime is greater than the fraction of the decedent’s estate to which the forced heir would succeed by intestacy, then the legitime equals the fraction due an intestate successor.4 For instance, if a decedent leaves five children, one of whom qualifies as a forced heir, the forced portion is 1/5 of the estate rather than 1/4. When calculating the forced portion, all donations made by the decedent within the last three years of life are included in the decedent’s property.5

A donation that impinges on the legitime is not null but is merely reducible to the extent necessary to eliminate the impingement.6 For example, if a husband’s will leaves all of his property to his wife and there is a forced heir who is entitled to one-fourth, the legacy to the wife is reduced to the disposable portion (3/4) in full ownership and a usufruct for life, with the power to dispose of nonconsumables, over the forced portion, because that usufruct could have been left to her expressly under La. C.C. art. 1499. This is the maximum extent to which reduction is needed to eliminate the excess that impinges upon the legitime, since the decedent could legally have made such a bequest to his surviving spouse. No further reduction is necessary or appropriate.7

• 1La. C.C. art. 1495.
• 2Id.
• 3La. C.C. art. 870(B).
• 4La. C.C. art. 1495.
• 5Id.
• 6La. C.C. art. 1503.
• 7See La. C.C. art. 1503 cmt. a–b.

No charges, conditions, or burdens may be imposed on the legitime except those expressly authorized by law, such as a usufruct in favor of a surviving spouse or placement of the legitime in trust.1

The decedent may grant a usufruct to the surviving spouse over all or part of the decedent’s property, including the forced portion, and may grant the usufructuary the power to dispose of nonconsumables as provided in the law of usufruct.2 The usufruct shall be for life unless expressly designated for a shorter period and shall not require security except as expressly declared by the decedent or as permitted when the legitime is affected.3 Security can be demanded from the surviving spouse by a forced heir who is not the child of that spouse.4  The requirement of security is not “automatic;” a forced heir “may request” such security, and the court “may order” such security as is necessary.

A usufruct can extend to movables, including cash, which is classified as a “consumable thing.”5 In that case, the usufructuary has the right to spend those funds; the usufruct continues to exist over the items purchased.6 Thus, consumable movables may be completely consumed by the usufructuary, and the naked owner has little recourse except a possible claim against the usufructuary or the usufructuary’s succession when the usufruct ends.7 “Nonconsumable things” include land, houses, and furniture.8 The usufructuary has the right to use and possess these things but not to alienate them.9 Nonconsumables can be sold with the permission of the naked owner(s), and the usufruct attaches to the proceeds of the sale unless the parties agree otherwise.10 A usufruct may be terminated for non-use or abuse of enjoyment and duties.11

• 1La. C.C. art. 1496.
• 2La. C.C. art. 1499.
• 3Id.
• 4La. C.C. art. 1514.
• 5La. C.C. art. 536.
• 6La. C.C. art. 538.
• 7Id.
• 8La. C.C. art. 537.
• 9La. C.C. art. 539.
• 10La. C.C. art. 616.
• 11La. C.C. arts. 621, 623.

If there is no forced heir, donations inter vivos and mortis causa may be made of any of the donor’s property.1 However, a donation inter vivos cannot divest the donor of all property—enough must be reserved for subsistence.2 This limitation on donors’ rights reflects the public policy of not allowing donors to impoverish themselves so as to become wards of the state. For obvious reasons, such restrictions do not apply to “mortis causa” donations.

• 1La. C.C. art. 1497.
• 2La. C.C. art. 1498.

There are three types of testamentary dispositions: universal, general, and particular.1 A universal legacy is the disposition of all of the estate, or the balance of the estate that remains after particular legacies.2  A general legacy is a disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a fraction or a certain proportion of the balances of the estate that remains after particular legacies.3 A legacy that is neither general nor universal is a particular legacy.4

These classifications become important if a legacy lapses, if one of the legatees renounces the inheritance, or if there are insufficient assets to satisfy all legacies. Particular legacies must be discharged in preference to all others.5 If the property remaining after payment of the debts and satisfaction of the legitime proves insufficient to discharge all particular legacies, the legacies of specific things must be discharged first and then the legacies of groups and collections of things.6 Any remaining property must be applied toward the discharge of legacies of money, to be divided among the legatees of money in proportion to the amounts of their legacies.7 When a legacy of money is expressly declared compensation for services, it shall be paid in preference to all other legacies of money.8

• 1La. C.C. art. 1584.
• 2La. C.C. art. 1585.
• 3La. C.C. art. 1586.
• 4La. C.C. art. 1587.
• 5La. C.C. art. 1600.
• 6La. C.C. art. 1601.
• 7Id.
• 8Id.

A legacy may lapse for several reasons including renunciation, invalidity, or the legatee’s death prior to that of the testator.1

The will controls the disposition (or “accretion”) of a lapsed legacy.2 In the absence of a governing testamentary provision, accretion occurs by the following rules:

1. A special rule applies when the legatee is the testator’s child or sibling, or a descendant thereof. In that case, the lapsed legacy goes to descendants of the legatee.3 The remaining rules apply to all other legatees.

2. If a joint legatee dies before the testator, the legatee’s share goes to the other joint legatee(s) equally.4 A legacy is “joint” if made to more than 1 person without assigning shares.5 The testamentary language controls this classification. For example, “I give my immovable property to A and B” creates a joint legacy, but the language “share and share alike” or “to share equally” does not. If the legacy is not joint, each legatee owns a specific portion without a right of survivorship in favor of co-legatees.6

3. When a particular or general legacy lapses, accretion takes place in favor of the successor who, under the will, would have received the thing if the legacy had not been made.7

4. A lapsed legacy that is not disposed of under the above rules goes ratably to the universal legatees.8

5. Any portion of the estate not disposed of under the above rules devolves by intestacy rules.9

• 1La. C.C. art. 1589.
• 2La. C.C. art. 1590.
• 3La. C.C. art. 1593.
• 4La. C.C. art. 1592.
• 5La. C.C. art. 1588.
• 6Succession of Lambert, 28 So. 2d 1 (La. 1946).
• 7La. C.C. arts. 1591, 1586–1587.
• 8La. C.C. arts. 1585, 1595.
• 9La. C.C. art. 1596.

The attorney, in all cases, shall present the original testament to the court to be filed and executed. If it is a testament other than a statutory testament, notarial testament, or nuncupative testament by public act, then the testament must also be proven (or probated).1 Thus, an olographic will must be proven. The petitioner must present the testament to the court even if he/she doubts the validity of the testament.2

If the petitioner cannot locate the original will, then the attorney should search for the original. If it was a notarial will, the attorney should try to contact the notary to see if there is an original will in the notary’s possession. The Secretary of State has a central registry of wills. If the testator registered his will, information about the will can be obtained from the Secretary of State.3 Also, some parishes allow wills to be registered with the clerk of court or notarial archives. In Orleans and other parishes there are will “books”, and your petition can reference at which book and page a will is located without presenting an original. In Jefferson Parish, and possibly others, the clerk of court stores wills and releases them with a proper petition. Nevertheless, wills are rarely registered.

If the original cannot be located, then the attorney has additional hurdles to overcome when proffering a copy. If the lost will was duly executed and in possession of (or readily accessible to) the testator, there is the legal presumption of revocation by destruction.4 When this presumption applies, those seeking to probate the will must establish by clear proof (1) that the testator made a valid will; (2) the contents or substance of the will; and (3) that the will, though it could not be found at the testator’s death after diligent search, was never revoked.5 This is most usually done by an affidavit of the client with personal knowledge that the original will existed after the death of the decedent, but was lost or destroyed by some other force, such as a house fire or natural disaster.

The attorney should also petition the court to direct that a search be made for the testament by a notary of the parish.6 This requirement most likely stems from the prior system in which notaries were required to keep files of their notarized documents. Presumably, the notary who notarized the missing testament would be the one charged with finding it, but this is not stated in the statute. The statute does say that the notary must be appointed by the court. However, experience has shown that many courts will accept an affidavit from the notary who prepared the document, stating that they possess a copy of the testator’s testament and that the proffered copy is the same as the one in the notary's records. This affidavit, along with an affidavit from persons with knowledge about the loss of the will after the decedent’s death, may be sufficient to probate the copy. 

If the will is not a notarial document, or the notary is unknown, the attorney should have the court appoint a notary to search the public registries for the missing will. If the notary fails to find the original will, then the client’s copy can be submitted with an affidavit. 

If the client knows that there was a will, but does not have a copy, there is case law supporting the proof of the contents of a will by parol evidence.7 Nevertheless, parol evidence is acceptable only if the witness actually read the testament and remembered its contents. Statements by the decedent are insufficient to establish the will’s contents.8

If the client does not have sufficient evidence to prove the contents of a will or to overcome the presumption of revocation, then the petition should state these facts and pray that the court find that the succession should proceed under the laws of intestacy. 

• 1La. C.C.P. art. 2852.
• 2La. C.C.P. art. 2853.
• 3See La. R.S. 9:2446–2447.
• 4Succession of Talbot, 530 So. 2d 1132 (La. 1988).
• 5Succession of Nunley, 69 So. 2d 33 (La. 1953).
• 6La. C.C.P. art. 2854; see La. C.C.P. Form 810a (West).
• 7Succession of Davis, 347 So. 2d 906 (La. App. 3 Cir. 1977).
• 8Fuentes v. Gaines, 25 La. Ann. 85 (1873), rev’d on other grounds, 92 U.S. 10.

Heirs have three options upon succession to a decedent’s property: (1) accept unconditionally; (2) accept with benefit of inventory; or (3) renounce.

Acceptance may be either formal or informal.1 Formal acceptance occurs when the successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding.2 Informal acceptance occurs when the successor does some act that clearly implies his intent to accept.3 Acceptance obligates the successor to pay estate debts up to that successor’s share of the estate, valued at the time of receipt.4

A successor’s creditor may, with judicial authorization, accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of the creditor’s rights.5 In such a case, the renunciation may be annulled in favor of the creditor to the extent of the creditor’s claim against the successor, but remains effective as to the successor.6

• 1La. C.C. art. 957.
• 2id.
• 3Id.
• 4La. C.C. arts. 961, 1416.
• 5La. C.C. art. 967.
• 6Id.

Renunciation is voluntary and involves the successor “giving up” his/her right to inherit from the decedent. Renunciation must be express and in writing.1 In the absence of a renunciation, a successor is presumed to accept succession rights.2 Nonetheless, for good cause the successor may be compelled to appear in court to specifically accept or renounce.3

The rights of an intestate successor who renounces accrete to those persons who would have succeeded to those rights if the successor had predeceased the decedent.4 A renunciation thus produces a result similar to representation. In the absence of a governing testamentary disposition, the rights of a testate successor who renounces also accrete to those persons who would have succeeded to them if the legatee had predeceased the decedent.5 Prior to August 15, 2001, in the absence of a governing testamentary provision, the rights of a testate successor accreted to the successor’s descendants by roots who were alive at the time of his death. If the successor had no descendants, the share devolved in accordance with the rules for lapsed legacies.

Care must be taken in planning renunciations. In some instances, an heir who renounces may end up getting a share of the inheritance if another heir subsequently renounces. For example, suppose a decedent is survived by 3 children, A, B and C, and the goal is to concentrate title in A. B renounces, but B has no descendants. B’s share will go to A and C. If C later renounces and has no descendants, his inheritance will go to A and B. This devolution to B after B’s renunciation can be prevented by having B’s original renunciation also renounce any accretions.6

Co-heirs in an intestate succession will often tell the attorney that they wish to renounce a succession so that another heir may inherit the entire property. Children will often want to do this, thinking the estate will then go to a surviving parent. The attorney should counsel such clients as to the effect of a true renunciation, namely, that the property will often devolve to their own children, creating an even more fractured ownership scheme. The co-heir may then wish to donate their share to another specific co-heir to whom the renouncer’s share would not otherwise accrete. This is possible and is called a “donative renunciation.” A donative renunciation is deemed to be an acceptance because the renouncer is really accepting the succession and then directing it to another person.7  This factor may be important when considering whether the donating heir will be held liable for succession debts or lose eligibility for public benefits such as SSI or Medicaid. To the extent that the donative renunciation disposes of incorporeal rights and/or immovables, it should be made by authentic act.8

Of note, the Fifth Circuit has held that a pre-bankruptcy renunciation of an inheritance is not a fraudulent transfer that would preclude discharge.9

• 1La. C.C. art. 963.
• 2La. C.C. art. 962.
• 3Id.
• 4La. C.C. art. 964.
• 5La. C.C. art. 965.
• 6See La. C.C. art. 964 cmt. c.
• 7La. C.C. art. 960.
• 8See La. C.C. art. 960 cmt.
• 9In re Laughlin, 602 F.3d 417 (5th Cir. 2010).

Unworthiness is an involuntary termination of inheritance rights that must be declared by the court.1   When declared unworthy, an heir is deprived of the right to inherit among other consequences.2 The grounds for a successor to be declared unworthy are (1) conviction of a crime involving the intentional killing, or attempted killing, of the decedent; or (2) judicial determination of participation in the intentional, unjustified killing, or attempted killing, of the decedent.3 Reconciliation or forgiveness will cure the grounds of unworthiness.4

An action to declare a successor unworthy may be brought only by a person who would succeed in place of or in concurrence with the successor to be declared unworthy or by one who claims through such a person.5 When a person who may bring the action is a minor or an interdict, the court may appoint an attorney to represent the minor or interdict for purposes of investigating and pursuing an action to declare a successor unworthy.6 An action to declare a successor unworthy is subject to a liberative prescription of five years from the death of the decedent as to intestate successors and five years from the probate of the will as to testate successors.7

If the decedent died intestate and the successor is declared unworthy, the successor’s rights devolve as if the unworthy had predeceased the decedent. However, if the decedent died testate, then the succession rights devolve under the provisions for testamentary accretion as if the unworthy successor had predeceased the testator.8  When the succession rights devolve upon a child of a successor who is declared unworthy, the unworthy successor and the other parent of the child cannot claim a legal usufruct over the property inherited by their child.9

• 1La. C.C. art. 941.
• 2La. C.C. art. 945.
• 3La. C.C. art. 941.
• 4La. C.C. art. 943.
• 5La. C.C. art. 942(A).
• 6La. C.C. art. 942(B).
• 7La. C.C. art. 944.
• 8La. C.C. art. 946(A).
• 9La. C.C. art. 946(B).

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.