Small Estate Affidavit for Estates under $125,000
Louisiana recognizes a small estate affidavit and also a summary administration
proceeding. You may either order the Small Estate Affidavit for Estates
smaller than 50,000 or the Summary Administration where the the value of
the entire estate, less liens and encumbrances, does not exceed homestead
allowance, exempt property, family allowance, costs and expenses of administration,
reasonable funeral expenses, and reasonable and necessary medical and hospital
expenses of the last illness of the decedent.
Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
Louisiana Summary:
Under Louisiana statute, where as estate is valued at not more than than $75,000, an interested party may issue a small estate affidavit to collect any debts owed to the decedent. Please see below for details.
Louisiana Requirements:
Louisiana requirements are set forth in the statutes below.
Relevant Statutes are:
LA CCP Art. 3431 Small Successions; Judicial Opening Unnecessary
A. It shall not be necessary to open judicially the small succession of a person domiciled in Louisiana who died intestate, or domiciled outside of Louisiana who died intestate or whose testament has been probated by court order of another state, and whose sole heirs are the following:
(1) His descendants.
(2) His ascendants.
(3) His brothers or sisters, or descendants thereof.
(4) His surviving spouse.
(5) His legatees under a testament probated by court order of another state.
B. Any person appointed as public administrator by the governor may use the affidavit procedure of this Chapter to take possession of the estate of the deceased for transmittal to the state provided there is no surviving spouse or other heir present or represented in the state, and provided he has advertised one time in the official journal of the parish where a succession would have been opened under Article 2811, and verifies that he has received no notice of opposition.
C. The legal notice required in Paragraph B of this Article shall read as follows:
Notice is hereby given to any heirs or creditors of __________ that _________, Public Administrator for the parish of _______________, intends to administer the intestate succession of __________________, under the provisions of Small Successions as set forth in Chapter 2 of Title V of Book VI of the Code of Civil Procedure.
Anyone having an objection to such administration of the succession should notify ________________ at _________________________________.
D. Repealed by Acts 2011, No. 323, 2, eff. June 29, 2011.
Amended by Acts 1984, No. 623, 1, eff. July 12, 1984; Acts 1990, No. 701, 1; Acts 1995, No. 111, 1; Acts 2006, No. 257, 1, eff. June 8, 2006; Acts 2009, No. 81, 1, eff. June 18, 2009; Acts 2011, No. 323, 1, 2, eff. June 29, 2011; Acts 2012, No. 618, 1, eff. June 7, 2012.
LA CCP Art. 3432.1 Affidavit for Small Succession for a person domiciled outside of Louisiana who died testate; contents
A. When it is not necessary under the provisions of Article 3431 to open judicially a small succession, at least two persons, including the surviving spouse, if any, and one or more competent legatees of the deceased, may execute one or more multiple originals of an affidavit, duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed, setting forth all of the following:
(1) The date of death of the deceased, and his domicile at the time thereof.
(2) The fact that the deceased died testate.
(3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse's address, domicile, and location of last residence, together with the names and last known addresses of the legal heirs of the deceased, and identifying those of the legal heirs who are also forced heirs of the deceased.
(4) The names and last known addresses of the legatees of the deceased, and the statement that a legatee not signing the affidavit was given ten days notice by U.S. mail of the affiants' intent to execute an affidavit for small succession and did not object.
(5) A description of the property left by the deceased, including whether the property is community or separate, and which, in the case of immovable property, must be sufficient to identify the property for purposes of transfer.
(6) A showing of the value of each item of property subject to the jurisdiction of the courts of Louisiana, and the aggregate value of all such property, at the time of the death of the deceased.
(7) A statement describing the respective interests in the property which each legatee has inherited and whether a legal usufruct of the surviving spouse attaches to the property.
(8) An attachment consisting of certified copies of the testament and the probate order of another state.
(9) An affirmation that, by signing the affidavit, the affiant, if a legatee, has accepted the legacy of the deceased.
(10) An affirmation that, by signing the affidavit, the affiants 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.
B. If the deceased had no surviving spouse, the affidavit must be signed by at least two persons who have actual knowledge of the matters stated therein.
C. In addition to the powers of a natural tutor otherwise provided by law, 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.
Acts 2012, No. 618, 1, eff. June 7, 2012.
LA CCP Art. 3432. Affidavit for small succession; contents
A. When it is not necessary under the provisions of Article 3431 to open judicially a small succession, at least two persons, including the surviving spouse, if any, and one or more competent major heirs of the deceased, may execute one or more multiple originals of an affidavit, duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed, setting forth:
(1) The date of death of the deceased, and his domicile at the time thereof;
(2) The fact that the deceased died intestate;
(3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse's address, domicile, and location of last residence;
(4) The names and last known addresses of the heirs of the deceased, their relationship to the deceased, and the statement that an heir not signing the affidavit (a) cannot be located after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of the affiants intent to execute an affidavit for small succession and did not object;
(5) A description of the property left by the deceased, including whether the property is community or separate, and which in the case of immovable property must be sufficient to identify the property for purposes of transfer;
(6) A showing of the value of each item of property, and the aggregate value of all such property, at the time of the death of the deceased;
(7) A statement describing the respective interests in the property which each heir has inherited and whether a legal usufruct of the surviving spouse attaches to the property;
(8) An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased; and
(9) An affirmation that, by signing the affidavit, the affiants 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.
B. If the deceased had no surviving spouse, the affidavit must be signed by at least two heirs. 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.
C. In addition to the powers of a natural tutor otherwise provided by law, 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.
Amended by Acts 1974, No. 524, 1; Acts 2009, No. 81, 1, eff. June 18, 2009; Acts 2011, No. 323, 1, eff. June 29, 2011; Acts 2012, No. 618, 1, 2, eff. June 7, 2012.
