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Estate Planning and Probate Across State Lines - Louisiana ESTATE PLANNING AND PROBATE ACROSS STATE LINES - LOUISIANA ERNY G. SIMMONS, Dallas Glast, Phillips & Murray Estate Planning Council of North Texas September 19, 2018 Plano, Texas Estate Planning ancl Probate Across State Lines - Louisiana TABLE OF CONTENTS L A. Louisiana Legal Concepts and Terrninology ,.................. I 3. Income on Sepalate Property. .............. I U DEFlr,\I1'IONS Oi. MOVABLE AND IMMOVAtsLti PROPlrll'IY, FOi{CilD HEII{, LECITIME, USUFRUCT AND NAKED OWNER .,,.,.,..,,,,...2 3. Special or Suppienrental Neecls lrorced TJeir..,..,...,,.. .....,......,......3 2. lnterest ol Surviving Spouse. ,..............4 TI I. ESTATE PLANNING . LIFETTME TRANSFERS................. ........,.....,....5 IV. ESTATES AND PROBATE (SUCCESSIONS); AFTER-DEATll ACTIONS AND PROCEEDINGS ...............6 A. Ancillary Succession Proceedings in Louìsiana ........,.......6 2. Snrall Succession Affidavit.,,..,..,....,. ..,..,....,........,...7 B. Original Probate under Louisiana Law .......,9 l. Simple Piacing in Possession (like Muniment of Title). ......,.......9 2. Administration of Louisiana Succession................. .,..........,...... l0 A. l-egitirlate Practice as l,icensed Texas [,awyer.,..,..,........ ........,......,. ll Estatc Planning ancl Probate Across Statc Lines - Louisiana TABLE OF AUTHORITIES State Statutes La. Civ. Code Art. 1493. Forced heirs; r'epresentation of'lorced heirs.......,.... ..........,............,..2 La. Crv. Code ALt. 1494, Forced heiL entitled to legitime; excepÌion..... ......,...,......3 l-a. Civ. Code Art. 149-5. Amount ol forced portion and disposable poltion ........,.. 3 La. Civ. Code Art. 1496. Permrssible burdens on legitime .. .........3 La, Civ. Cocle ALt. 1621, Children; causes tbr disinherison by parents ...................4 La. Civ. Code Ar1. 2339. Fruits and revenues of separate property....... ................I La, Civ. Code Art. 2340. Presumption olcomrnunity ..,..,................. I I-a. Civ. Code Alt. 2341 . Separate property .................. I La. Civ. Code Ar1. 3528. Folnral validity of testarrrentaly dispositions...,.,,..,.,.... ..,........,...,.....9 La. C-'iv. Code Art. 3532. Movables .............. ...............5 La. Civ. Code Art.3533. lnlmovables situated in this state............. ,.....,,.....,.,......2 La. Civ. Code Art.473, Incoryorealmovables.................. ......,......,..5 La. Civ. Code Art, Aft. 2338. Community propefty..,... ..................,. I I-a, C--ode Civ. Proc. Atlr.28l l. Courl in which succession opened ,..........,...,.....l0 I-a. Code Civ. Proc, Art. 2888. Foreign testament..... ............,..........,9 La. Code Civ. Proc. Art.3091. Disqualifìcations........,.... ............... i0 La. Code Civ. Proc. Art, 3401. Jurísdiction; procedure.. ..,..,......,.... 10 La. Code Civ. Proc. Art.342l. Srnall successions defined....,... ........1 La. Cocle Civ. Proc. 4ft. 3431. Snlall successions;judicial opening unnecessary ,..,..,,.,....,..,7 La. Code Civ. Proc. Arl. 3432,1 . Affidavit for small succession for a person domiciled outside of Louisiana who clied testate: contents .........8 La. Code Civ. Proc. Art. 3434. Endorsed copy of affìdavit authority for delivery of property..,..,...,....,..,..8 I..a. Rev. Stat $9:1847. Invasion of plincipal; legitinre affected ............,.............4 [-a. Rev, Stat, $9:1841. General rule ........,4 La. Iìev. Stat, 59:1844. Legitirne bL¡rdened with income interest or usufruct.,. ,..............,.......,.4 La. Iìev. Stat. 59;2092. Iìecordation of instrurnents................. ,....,...5 La. Rev. Stat. $9:2421. Willprobated oLrtside state may be allowed and recorded ..........,.,......6 ll Estate Planning and Probate Across State Lines - Louisiana I-a. Rev. Stat. 59:2422. Filing of will and proceedings thereon ........6 La. Iìev. Stat. 59:2423. Admission to probate; force and effect....,..... .,,...,........,..6 La. Iìev. Stat, 59:2425. Short title; interpletation........... ...................1 I-a. Rev. Stat.$9:2424. Probate o1'rvill operative undel'larvs of state or cor¡ntry not reqLriring probate.........7 ll I Estate Planning and Probate Àcross State Lines - Louisiana ESTATE PLANNING AND PROBATE nlanagerrent of conrnt¡nity propeny by the other ACROSS STATE LINES _ LOUISIANA spouse, damages or other indemnity awarcled to a spouse in connection with the managernent ol his separate property; and things acquired by a spouse as a INTRODUCTION I. result of a voluntary parlition of the community during Plesentation directed towards 1'exas lawyers rvho the existence of a cornmunity property legirne. represent Texas clients owning Louisiana real propeÍy Acts 1979, No, 709, S1; Amended by Acts 1981, (real estate, including rninerals), Outline is divided No. 92 l, $ l. betu,een (1) planning f-or these clients plior to death and Like Texas, i-or"lisiana provrdes for a presumption (2) ancilÌary ancl original Louisiana probate for of community properly which may be rebutted: decedents whose death occurs rvithout such lifetime planning being irlplernented. I-a, Civ. Cocle Art. 2340. Presunrption of community. A. Louisiana Legal Concepts and Terminology l. ConrmunityPlopert),. Louisiana is a comnrunity propelty state like Things in the possessíon of a spouse dLrring the 'l'exas, and provicles defìnitions for what is community existence of a regime of cornrnunity of acquets and and separate, states a presuurptiorr clf comnrì.rnity ancl gains are presurred to be colnmunity, bLrt either spouse provides that income on separate propeÍy is itself may prove that they are separate property. comrrunity. See relevant l-ouisiana Civil Code articles Acts I 979, No, 709, $ I , reproduced below. 3. lncorne on Separate Property, l-a, Civ. Clode Art, Art. 2338. Cornrrunity Fruits and revenues (i.e,, income) on separate propefty. property is itself community. La. Civ. Code AÍ. 2339 states as follows: The cornrrunity propcrty comprises: property acquired La. Civ. Code Art. 2339. IrLuits and levent¡es during the existence of the legal regime throLrgh the of separate propel'ty efforl, skill, or industry of either spouse; properfy acquired with community things or rvith community and separate things, unless classifìed as separate The natilral and civil fruits of the separate propefiy of a property undel Article 2341; property donated to the spouse, minerals produced from or attlibutable to a spouses jointly; natt¡ral and civil fruits of community separate asset, ancl bonuses, clelay rentals, royalties, and propeúy; damages awarded for loss or injury to a thing shut-in payrnents alising fi'om nrineral leases are belonging to the commLruity; and all other property not community propefly. Neveflheless, a spouse may classified by law as separate property. reselve thern as his separate property as provided in this Acts 1979, No. 709, Sl. Article. Note that propcrty may be donated to a nrarried A spouse may teserve them as his sepalate couple as conrnrunity properly. I-ouisiana lau, also propefty Lly a declalation rrade in an authentic act or in contains a definition of what constitutes separate an act undel private signature duly acknowleclgecl. A property in [,ouisiana. copy of the declaration shall be provided to the other spouse prior to fìling of the declaration. 2. Separate Property. As to the fì'uits and revenues of imnovables, the declaration is effective wher.ì a copy is plovidecl to the La. Civ, Code Art. 2341. Separate pfoperty. other spouse and the declaration is fìled for registry in the conveyance records of the parish in which the immovable property is located. As to lruits of The separate propeúy of a spouse is his exclusively, It rnovables, lhe declalation is effective when a copy is comprises: property acquired by a spouse prior to the plovidcd to the other spouse and the declaration is filed establishment of a cornmunity propeúy regirnc; for legistry in the conveyance records of the parish in propefiy acquired by a spouse with separate tl.ìings or rvhich the declalant is domiciled. with separate and corrmunity things rvhen the value of Acts 1979, No. 709. Sl; Amended by Acts 1980, tlre conrmunity tlrìngs is inconsequential in conrparison No. 56,5, $2; Acts 2008. No, 855, Sl. with the value of the separate things used; property Generally, as in Texas, inconre on separate acqi:iled by a spouse by inhelitance or do¡lation to him propefly is commLrnity. Nole the LoL¡isiana provisions individually; clamages awarded to a spouse in an action classiffing nrineral procl,rction, royalties and leases fol bleach of corrtract against the othel spouse or for the f}om separate property as cornmunity. Also, note the loss sustained as a result of fi'aud or bad fàith in the I Estate Plannins and Probate Across State Lines - Louisiana provision allowing a spor.lse to fìle a decìaration to tirne of death and he lefi no forced heirs dorniciled in "reserve" income as his or her separate property. There this state at the time of his death. is a relatively recent requirement tlrat a copy of the Acts 1991, No, 923, Sl, eff. Jan. l, 1992; Acts declaration be provided to the spouse (the old law I 997, No. 257, S I . permitted the reservation of income as sepal'ate to be Very imporlantly, the above provision explicitly done solely by fìling a declaration in the public states that L,ouisiana's forcecl heirship law does not recolds), Although a public record, reservation of apply to a dececlent domiciled in 'fexas rvho, at death, incorne as separate could be acconrplished Lrnder prior lelt no forced heils douliciled in Louisiana. Thus, if law rvithout the spouse's
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