You may be wondering how to probate a will in Louisiana and what steps you must follow to get the judgement of possession signed. This article will explain how to probate a will that was created in Louisiana as well as out of state wills. You must have the will “proved” and be admitted through the court system in a Louisiana court. First, you must choose the correct court to probate the will.
Where to Probate a Will in Louisiana
A Louisiana court must have proper jurisdiction to be able to handle a succession and probate a will. You must choose the proper parish to begin the process of probating the will or the court will refuse to accept the filings and you will have to start over in the right parish. The required parish is determined by a few factors such as:
- Decedent was domiciled (lived) in Louisiana at the time of death – succession will be opened in that parish;
- Decedent lived in another state – succession will be opened in the parish where the decedent owned real estate;
- Decedent lived in another state and did not own real estate – succession will be opened in the parish where movables are located.
*Real estate includes all immovables. Movables are assets such as vehicles, bank accounts, etc.
How is Domicile Determined?
The court looks at many factors to determine a deceased person’s domicile. The main test is where an individual’s main or habitual residence is located. Basically, which place did the deceased individual consider “home.”
You can own multiple homes, but only one can be your domicile or principal residence. If there is a question as to a deceased individual’s domicile, the court can look at factors to prove principal residence to establish domicile.
Choosing the correct parish to file a succession and probate a will is incredibly important and many people make mistakes. It’s best to speak with an attorney to ensure you file in the right parish.
The Petition to Probate the Testament (Notarial or Olographic)
The Petition is drafted by a Louisiana succession attorney and is filed with the court in the proper parish. This document contains information such as where the deceased was domiciled, information about the will, date of death and other information the court will need to proceed with the succession. The Petition to Probate the Testament basically provides the court with details to recognize the validity of the will. It basically petitions the court to admit the will to probate, file and record it in the records.
There are two main types of will that will be probated: Notarial and Olographic. There are requirements that must be met for either type to be considered valid by the court.
The notarial testament is a self-proving document and doesn’t require any additional information. It can simply be filed as long as it’s in proper form. The court will order it to be filed with the effect of probate.
The Olographic testament has a few extra hoops to jump through as it’s not considered a self-proving document. If there is no argument regarding the will, you will have to submit affidavits from two witnesses that can state they knew the deceased’s handwriting and that the handwritten will was in their handwriting. The two witnesses must sign the affidavits to be presented to the court. Basically, a handwritten or olographic will is not self-proved and must be accompanied by evidence.
If the will is being disputed or the validity of the will is under fire, you must have a contradictory hearing in front of the judge. He or she will hear the evidence provided and make a decision as to the validity of the olographic or handwritten will.
This is known as a contested succession or contested estate. You will have to pay a higher fee for contested estates as there is much more work to be done.
Required Affidavits to Probate a Will in Louisiana
You must submit a number of affidavits to probate a will in Louisiana. The Affidavit of Death, Heirship and Jurisdiction, also known as the Affidavit of Death, Domicile and Heirship is required for all successions. The other affidavit only applies to the Olographic or handwritten will and it’s required from two witnesses that are familiar with the deceased and the deceased’s handwriting.
Affidavit of Death, Heirship and Jurisdiction
This affidavit must be signed by two people who were acquainted with the deceased and can sign stating that they know about the facts in the affidavit. This is one of the first documents your attorney will prepare to probate a will in Louisiana. It establishes the decedent’s death, date of death, marriage history, children, domicile and other facts of the estate.
The affidavit of death, domicile and heirship is usually submitted at the beginning of the succession with the petition to probate the will. It must be signed by two witnesses in front of a notary.
Detailed Descriptive List
You must submit a detailed descriptive list during the succession process. This is normally done towards the end because it may take some time to locate and describe all property owned by the deceased.
The detailed descriptive list is prepared by your attorney and lists all property, both movable and immovable that the deceased owned. It also provides the fair market value of each item at the date of the decedent’s death. Real estate requires you to list the legal description and fair market value of each piece of property.
You will also list all movables such as vehicles, boats, farm equipment, bank accounts, etc. The detailed descriptive list will also describe the succession liabilities such as attorney fees, court costs and burial expenses. Your attorney will then prepare a recapitulation that subtracts the succession liabilities from the succession assets to give the court a total for the estate value.
What Doesn’t Go Into the Detailed Descriptive List
You won’t need to list insurance policies or some retirement accounts because they do not go through probate as they have beneficiaries that will receive the proceeds.
Summary of Required Documents to Probate a Will
Here is a shortlist of documents your attorney will prepare to probate a will in Louisiana:
- Petition to Probate Testament (Notarial or Olographic)
- Affidavit of Death, Domicile and Heirship
- Affidavits for Olographic or Handwritten Wills
There are other documents that your attorney will prepare and file in order to probate a will in Louisiana.