This page is to educate consumers about the probate process in Louisiana and its costs, and the merits of “probate avoidance.”
In general, what is Louisiana Probate?
Probate is the process whereby the deceased person’s representative asks the Court to formally open a Succession under the name of the deceased person, formally appoint the representative (known as an “Administrator” or “Executor”), and then place ownership of the deceased person’s property into the names of the person or persons who stand to inherit that property.
If a person does not own property in his or her name (at least not directly) then probate is not necessary. That is a primary reason that a trust can be used to avoid probate. The property that the deceased person owns can be in the name of a “living trust”. To learn more about trusts, click here.
Also, if a person dies with property valued at less than $75,000, an “Affidavit of Small Succession” can be prepared in lieu of a probate. To learn more about the Affidavit of Small Succession, click here.
For clients that pass away with property valued in excess of $75,000 and which is not in a trust, a probate process is necessary.
How is a Probate opened, and what are the pleadings generally submitted to the Court?
In general, a probate is opened by a lawyer preparing certain legal documents for presentation to the Court. These documents generally include, at least:
- Affidavit of Death, Domicile, and Heirship. This document lists when and where the person died, where he or she lived at the time of death (so the Court knows it is the proper Court to handle the proceeding), and the natural heirs of the deceased person, including his or her surviving spouse and children.
- Petition to Probate a Will (if the person died with a Will) and an Order Probating the Last Will and Testament. This document asks the court to accept the Last Will and Testament of the Deceased and Order it probated according to law.
- Petition to Appoint an Administrator or Executor as well as an Oath of Office of the Administrator or Executor (for successions in need of administration). This document asks the Court to appoint a person to represent the Succession and to manage its assets during the pendency of the probate process.
- Descriptive List of Assets and Debts of the Succession. This document lists all of the property and the debts of the deceased person, and the values for each at the date of death. All property is described with its formal legal description. For example, all real estate is described by the property description that the property had in the deed to the property when it was originally acquired.
- Petition for Possession. This document asks the Court to put one or more heirs into ownership (possession) of the property of the deceased.
- Judgment of Possession. This document is the formal order of the Court placing the property in to the names of the heirs of the deceased person. In cases in which real estate is transferred, this should be placed into the Conveyance Registry of the Clerk of Court.
These are generally the minimum. Other pleadings may have to be prepared for a Succession under administration or a succession that lasts a long time.
What are the Court Costs for a Probate proceeding?
Generally, court costs paid by the client to the Clerk of Court start at approximately $250 for simple successions and go up from there. However, each Clerk of Court of each Louisiana Parish can be somewhat different. The more pleadings filed, the higher the Court Costs.
What are the Attorney’s Fees paid to the Attorney for a Probate?
We cannot speak for other law firms. In general, for a small uncomplicated succession, our fees can start in the range of $1,500 to $2,000 and go up from there. The more complicated the succession, the higher the fees.
Some law firms charge based upon the value of assets in the succession. Be very careful of an attorney that wants to charge based upon a percentage of assets. That can be highway robbery. The fee charged by the attorney should be based upon the work done by the law firm, not on the assets owned. For example, if a succession has only a single parcel of real estate valued at $1 million (the title and property description of which is clear), the fee charged by the attorney should not be significantly different than that charged for a succession that has a single parcel of real estate valued at $100,000. The amount of work done by the law firm is not significantly different in either case, and so the fees should not be significantly different.
Is an Appraiser’s Report Necessary to Value the Property of the Succession?
Not usually. Usually a good faith estimation of value based upon tax assessments and comparable properties ascertained by the succession representative is sufficient.
However, sometimes an appraiser’s report may be recommended where the client needs to establish value for some reason. This can include cases in which income tax basis should be established to avoid future capital gains income taxes or to establish fair market value in connection with an estate tax return.
How long does the probate process take?
The probate process timeline varies based upon how many issues are present in each probate process.
A succession that is not in need of administration can be quickly “opened and closed” without administration in one group of pleadings filed with the Court. In this case, everything is submitted and signed at the same time. Generally, it can take up to a week after submission of these pleadings to the Court for the Judge to sign the Judgment of Possession. So the limitation here is on how fast you get the information needed to your lawyer (for example, property descriptions) and how long it takes your lawyer to prepare the pleadings.
For a succession in need of administration, the probate process can take as long as the reasons giving rise to the administration are in place. In other words, if property has to be listed with a realtor and sold with court approval, it can take months (or even years) to advertise in the newspaper as required by law, obtain approval from the court, list the property, and sell the property, and finally dispose of the proceeds.
Note that for some lawyers their probate work is a “sideline” to what they normally do in their law practice (i.e. personal injury, divorce, etc.). So their probate work is often placed on the “back burner”, because there is not generally a court calendaring system as it relates to successions. In other words, the speed of the process is often dependent on the attorney, and the attorney can often make their probate files a “step child” of their law practice.
What Property is Subject to Probate?
All of your separate property and one-half of your community property is subject to probate. For a discussion of property concepts, go here.
Is “Probate Avoidance” Necessary in Louisiana?
Not really. But it can definitely be an ancillary benefit to an more comprehensive estate plan as discussed below.
The “probate avoidance” mantra is largely the result of the legal regimes existent in other states. In those states “probate avoidance” is an absolute necessity often due to a state judicial system that runs off the fees levied against the dead. These fees often operate like a hidden estate tax. Also, the court rules in some states compound the legal costs and fees. For example, some states require that an additional attorney be appointed to represent the estate, resulting in a doubling of legal fees being paid to attorneys. In those states, “probate avoidance” is not merely suggested, it can be tantamount to malpractice to fail to suggest probate avoidance to a client.
In Louisiana, the process is typically much simpler. First, the judicial system is not funded in large measure by successions, and court costs are low compared to some other states. Successions generally pay Clerk of Court fees that are similar to other proceedings before the court. Second, the procedure can be much more streamlined because the law contained in the Louisiana Code of Civil Procedure allows for a more expedited court process. Third, Louisiana has a further streamlined procedure called “independent administration” that, if you opt for it in your Last Will and Testament, can further reduce attorney’s fees and costs.
Therefore, in Louisiana “probate avoidance” should not usually be the primary driver of your estate plan. Be wary of unethical trust mills that attempt to sell you a trust by scaring you about the probate process. This is misleading. In Louisiana, there generally should be reasons to establish a trust other than probate avoidance.
With that said, there are some circumstances in which probate avoidance should be a primary driver of your estate plan. To learn more, go here.
Should I Avoid Probate by Using a Living Trust?
This is a misleading question, because if you have property, you can’t avoid probate, with or without a trust. What do I mean by that? Broadly speaking, “probate” means (or includes) the process whereby your “stuff” is transferred to your heirs. A properly constructed trust includes this as part of the process. Therefore, in lieu of your property being transferred in probate as part of a court proceeding, your property is transferred into a trust with the assistance of an attorney. Both “probate” and a Living Trust involve much the same process of property transfer.
This is why a Living Trust is generally more expensive than a typical Last Will and Testament. It is because a Living Trust is not just a legal instrument directing who gets your “stuff” after you pass away, it is an estate planning vehicle whereby your stuff is actually transferred into the trust.
Can Probate Avoidance be an Ancillary Benefit to an Estate Plan with a Living Trust?
Yes, absolutely. That is because although a Last Will and Testament can be a less costly alternative on the “front end”, one must consider the “back end” costs of probate as well. Consider the following hypotheticals:
Probate. H & W go to an attorney to have their Last Wills and Testaments drafted thinking that it is a less costly alternative to a Living Trust. Attorney charges only $750 for this service (hoping that H &W or their heirs will return to him to have him probate the wills). Upon the death of Husband, the same attorney is hired to perform the probate of the Will of Husband, charging $1,750 with court costs of $250. Upon the death of Wife, the attorney is hired to perform the probate of the Will for Wife, charging $1,750 with court costs of $250. Total fees paid = $4,750.
Living Trust. H & W go to an attorney to have a Living Trust drafted. Attorney charges $3,750 for this service, including all of the service to transfer their property to the Living Trust. After the death of Husband and Wife, the heirs consult the attorney to transfer the property out of the Living Trust to the heirs without a court process. Attorney charges $1,000 for this service. Total fees paid = $4,750.
In these two hypotheticals, the total fees paid are the same. However, the product received by the client, including asset protection received from the Living Trust, can be significantly different. That is because a Living Trust can achieve a significant degree of asset protection depending on how the trust is drafted.
To learn about the asset protection benefits of certain kinds of Living Trusts, click here.[5]