When someone dies, family members are left to grieve and mourn for the loss of their loved one. That grief can be compounded if that loved one did not leave a will in place. When a person dies without having a will in place, his or her estate is distributed by what is called “intestate succession” to heirs according to government law. Basically, if you do not have a will, the state will make one for you and then transfer it to your heirs.
Intestate laws differ and vary greatly from state to state. In Louisiana, the assets of the deceased are distributed to the heirs of the deceased. Usually, the spouse and children of the deceased are the first to receive the estate. However, there are circumstances that occur more often than one might think where collateral relatives (siblings/nieces/nephews/aunts/uncles/cousins) and/or ancestors are the rightful heirs. This process is often more complicated than it may seem. This is because the law depends on two factors:
- Community versus separate property
- Biological closeness of relative to the deceased party
According to Louisiana law, a person’s assets are either community property or separate property. This designation is important in determining to whom the asset is transferred. Community property and separate property are designated as the following:
When a couple is married, they promise to devote their lives to each other, as well as combine their property, assets, and income into one. The following property is considered “community property” upon marriage:
- Property acquired during the marriage through combined effort and/or skills of the couple
- Property acquired with community things
- Property acquired with community and separate property when the value of the separate property is minor compared to the value of the community property
- Damages for loss or injury to community property
- All other property not legally classified as separate
Though most property and assets become community property upon marriage, there are some instances in which the property/asset/income/debt is legally “separate” property. The following are examples of what constitutes separate property:
- Property acquired by a spouse prior to marriage
- Property acquired by one spouse through an inheritance or by donation
- Property acquired during the marriage but is legally classified as separate property by a marital agreement
- Property acquired with funds of one spouse that is separate from the other
- Cost of damages caused by one spouse due to that person’s fraud or mishandling of individual property
Whether the property is community property or separate property is how the state distribute the deceased’s property among family. If the deceased had any community property (must have a spouse who has survived the decedent), there are two scenarios in which that property will be divided:
- The deceased has a surviving spouse and descendants: ½ of the community property is inherited by the surviving spouse outright and the deceased’s ½ portion of the community property goes to the spouse via a usufruct, or life estate. Once the spouse dies or remarries, the deceased’s ½ property will pass fully to the descendants. It is very important what type of property is community – immovable or movable.
- The deceased has a has surviving spouse with no descendants: All community property passes to the living spouse
If the deceased person had separate property, there are several scenarios of how that property will be divided. This is based on what family is remaining. The following are a list of ways in which that property could be divided:
- The deceased has surviving descendants: All separate property in this case will go to surviving children. If those children are deceased, the children of those children inherit the property in even portions of what the parents inherited (also known as “by roots”).
- The deceased has no surviving descendants but has surviving parents and siblings: All separate property in this case will go to the parents via a usufruct. The siblings will inherit the naked ownership of that property and won’t own it fully until the parents have passed on. If there are half-siblings, they will inherit the property divided between the mother’s and the father’s family lines – meaning half-siblings will usually inherit less. Stepsiblings do not inherit from the deceased outside of a will.
- The deceased has no surviving descendants nor parents but has surviving siblings: All separate property in this case will go to the surviving siblings, with the same provision regarding half-siblings applying.
- The deceased has no surviving descendants nor siblings but has surviving parents: All separate property in this case will go to the parents equally. If only one parent is alive, then that parents inherits all of the property. Stepparents do not inherit outside of a will. If the deceased has siblings who have predeceased them and the deceased’s parent(s) are still alive, then the sibling’s descendants may stand to inherit the deceased’s separate property.
- The deceased has no surviving descendants, parents, or siblings but has a surviving spouse: All separate property is inherited by the surviving spouse.
- The deceased has no surviving descendants, parents, siblings, descendants of siblings, nor spouse: All separate property in this case will go to other relatives of the deceased based on the closeness of the family relationship, such as aunts/uncles and/or cousins.
When someone dies without a will, deciding where their property goes can be a difficult task. However, Louisiana has set guidelines on how that will be divided, regardless of the deceased’s family’s wishes in some cases. Ultimately, the property, whether separate or community, is divided fairly, but a will should be made to make sure that your property is distributed according to your terms. If you need help creating a will, do not hesitate to contact Latiolais Law today!