Louisiana Probate Issues

Giustina L. PersichSteptoe & Johnson PLLC

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Not the English Common Law

• Most of the United States have relied onvariations of the English Common Law, a series ofcourt precedents, to determine the legal courseof action relative to legal issues arising in theirjurisdictions.

• Louisiana relies on a set of laws based onpreexisting French and Spanish Codes which werewritten down, codified and based upon AncientRoman law.

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Preexisting Codal Law• These legal codes were in place in the Louisiana

territory prior to its purchase by the UnitedStates government.

• Much discussion was had regarding whether thenew state should maintain these laws, or adopt anew set of laws based on the English CommonLaw.

• It was decided that as long as the local law didnot conflict with the United States Constitution orthe US federal law, the existingSpanish/French/Roman codes would remain thelaw in Louisiana.

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Excerpt from the session of theLegislative Council of May 26, 1806

• “this law is the one which nineteen-twentiethsof the population of Louisiana know and areaccustomed to from childhood, of which lawthey would not see themselves deprivedwithout falling into despair.”

• The idea being that the people of Louisianawere so well acquainted with the existingcodal laws that changing them would affectthe tranquility of families and bring abouttotal ruin.

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Louisiana is a Community PropertyState

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Community Property• Married couples who reside in the State of Louisiana are subject to the

legal matrimonial regime called the community of acquets and gains.There is a legal presumption that things in the possession of one spouseduring the marriage are the community property of both spouses. C.C.Art. 2327 and 2340.

• Each spouse acting alone may manage, control, or dispose of communityproperty, unless otherwise provided by law. For example, both spousesmust concur for the alienation, encumbrance or lease of communityimmovable property and movable property registered in the names ofboth spouses jointly. C.C. Art. 2346 and 2347. Donation to a third partyrequires concurrence of the spouses, as well. C.C. Art 2349.

• The legal regime of community property is terminated by the death of aspouse, a declaration of nullity of the marriage, a judgment of divorce, ajudgment of separation of property, or by matrimonial agreementterminating the community. C.C. Art. 2356.

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What is Community Property• a) property which is acquired during the marriage,

through the effort, skill or industry of either spouse;C.C. Art. 2338.

• b) property acquired with community funds; C.C. Art.2338.

• c) property that is not declared separate even thoughacquired with community and separate funds; C.C. Art.2338.

• d) property donated to both spouses jointly; C.C. Art.2338.

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• e) natural and civil fruits of community property; C.C. Art. 2338.

• f) damages awarded for loss or injury to community property; C.C.Art. 2338.

• g) compensation of loss of community earnings or medicalexpenses due to personal injuries sustained by one spouse duringthe marriage; Article 2344.

• h) Natural and Civil fruits of separate property, including Minerals,in the absence of an express declaration to the contrary. Thedeclaration must be in authentic form (witnessed and signed by anotary and 2 witnesses); a copy must be provided to the otherspouse, and for movable property, the declaration must be filed forregistry in the Conveyance Office in the parish of declarant’sdomicile. For immovable property, the declaration must be filed inthe Conveyance Office of the parish in which the immovableproperty is located. C.C. Art. 2339.

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What is Separate Property

• a) property acquired by one spouse prior tothe marriage; C.C. Art. 2341.

• b) property acquired by one spouse withseparate funds or with separate andcommunity funds if the value of communityfunds is inconsequential; C.C. Art. 2341.

• c) property acquired by one spouse throughinheritance or donation to him individually;C.C. Art. 2341.

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• d) damages to one spouse for breach of contractagainst the other for mismanagement of communityproperty; or damages to one spouse in connection withmanagement of his separate property; C.C. Art. 2341.

• e) property acquired by one spouse as a result of avoluntary partition of the community property duringthe marriage; C.C. Art. 2341.

• f) when one spouse donates her interest in an item ofcommunity property to the other spouse, the entireproperty, including the natural and civil fruits andminerals produced from the property, as well asbonuses, delay rentals and shut in payments, becomesthe separate property of the one receiving the interest.C.C. Art. 2343.

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Everyone Dies

• What happens in Louisiana when you die?

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Funeral Procession

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Laid to Rest

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Party Time

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Successions

• In Louisiana, the Probate process is called a“Succession.” In a “Testate Succession,” thedeceased left a valid will. In an “IntestateSuccession,” the deceased did not leave avalid will. C.C. Art. 870 - 875.

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Testate Succession• There are two (2) forms of wills in Louisiana.• The Olographic will is one written, dated and signed

entirely in the handwriting of the testator.• The Notarial will is one written and dated, signed or

marked by the testator in the presence of a notary and twowitnesses. The notary and witnesses must also sign adeclaration stating that the testator declared theinstrument to be his testament, and that he signed the willon each page and at the end of the will. All signatures musttake place in the presence of all parties. There areadditional provisions for those situations where thetestator cannot read or sign, or suffers from vision and/orhearing impairments. C.C. Art. 1574 – 1580.1.

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Testate Succession continued• To probate the will, parties “Open Succession”, the process of

having the heirs and legatees judicially placed in possession ofdecedent’s property. The testate succession process is governed byC.C.P. Art. 2811, et. seq., and is not covered in detail in this paper.However, the important instrument to look for when examining titleis the “Judgment of Possession.” The Judgment shall recognize theheirs and legatees, surviving spouse of the decedent and send theappropriate parties into possession of property owned by decedentat the time of his death. The Judgment also recognizes anyusufructuaries having an interest over any of the property. C.C.P.Art. 3061. Note that the Judgment of Possession shall be primafacie evidence of the relationship between the decedent and hersurviving spouse, heirs, legatees and usufructuaries, if any, and alsothe right of these parties to possess decedent’s estate. C.C.P. Art.3062.

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Intestate Succession

• In an Intestate Succession, the deceased didnot leave a valid will, and the disposition of hisproperty is determined by operation of law(C.C. Art. 880, et. seq.)

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What goes to whom?

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Forced Heirship• Of particular importance in Louisiana Probate law

is recognition of the Forced Heir. A forced heir isa descendant of the first degree, who at the timeof death of the decedent, is twenty-three (23)years of age or younger, or of any age whobecause of mental incapacity or physical infirmity,is permanently incapable of taking care of himselfor administering his estate. C.C. Art. 1493. It isimportant to note that prior to July 1, 1990, aforced heir was a descendant of the first degreeof any age.

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Forced Heirship continued• Louisiana law reserves a portion of the decedent’s estate, called the “legitime,” or

“forced portion” which falls to the forced heirs at the decedent’s death, regardlessof the provisions of his Last Will and Testament. C.C. Art. 1494.

• The legitime, or forced portion, is currently determined as follows:• 1 Child: 1/4 of entire estate• 2 or more Children: 1/2 of the entire

estate, shared bychildren

• C.C. Art. 1495By Will, a testator can provide a usufruct to the surviving spouse for life or for ashorter period over legitime. C.C. Art. 1499.

• C.C. Art 1503A Will that impinges on the forced portion is not null, but the amountsdevised to the legatees will be reduced to the extent necessary toeliminate the impingement.

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Usufruct

• A Usufruct is a servitude over the property ofanother. It is considered a real right of limitedduration. C.C. Art. 533 and 535. In terms oftitle examination, the types of usufruct wewould most likely see would be a usufructover a tract or tracts of real property, over theoil and gas in and under that property and ausufruct over a mineral servitude.

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Usufruct continued

• Usufructs are conferred by operation of law through anIntestate Succession, or conferred by a testator in hisLast Will and Testament.(They can also be conferred byDonation made during the life of the donor.) Theperson who owns the usufruct is called the“usufructuary.” The usufructuary is entitled to use theland and also entitled to enjoy the things that areproduced from the land (the fruits), whether occurringin nature, such as crops or timber, or civil fruits, such asrentals, interest, etc. C.C. Art. 550 and 551. Hence, theterm usufruct from the Latin: usus and fructus.

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Usufruct/Naked Owner• The person who possesses the ownership interest

in the property (the fee owner) is called the“naked owner.” The usufructuary is charged withmaintaining the property and is answerable tothe naked owner for losses resulting from hisfraud, default or neglect. C.C. Art. 576 and 577.In turn, the naked owner cannot interfere withthe rights of the usufructuary. Generally, theusufruct of land by itself does not include therights in minerals, the ownership of which isretained by the naked owner. Mineral Code Art.188 and 195 (R.S. 31:188, 195.)

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Naked Owner

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Usufruct Over Minerals

• A usufruct over the minerals can be conferredby express provision in a Donation or Will,which then entitles the usufructuary of all thebenefits of use and enjoyment of theminerals, including the right to lease. MineralCode Art. 189 and 193 (R.S. 31:189, 193.) Thetermination of the usufruct extinguishes anyoil and gas lease executed by the usufructuaryof the minerals. Mineral Code Art. 118 (R.S.31:118.)

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Surviving Spouse Usufruct By Law

• In an Intestate Succession, the survivingspouse of a decedent who is also survived bydescendants, is awarded, by law, a usufructover the decedent’s share of the communityproperty. The usufruct terminates when thesurviving spouse dies or remarries, whicheveroccurs first. C.C. Art. 890.

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Surviving Spouse Usufruct By Will

• By Last Will and Testament, the decedent cangrant to the surviving spouse a usufruct overall of his property, separate and community,including the forced portion, and canexpressly designate the duration of theusufruct. In the absence of a designation, theusufruct shall be for the life of theusufructuary. C.C. Art. 1499.

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Surviving Spouse Usufruct OverMinerals

• Contrary to the general rule, when a survivingspouse is awarded a usufruct of land, whether bylaw or by will, she is entitled to the use andenjoyment of the landowner’s rights in minerals.Mineral Code Art. 190 (R.S. 31:190.) However,the surviving spouse usufructuary cannot executea mineral lease over the property without theconsent of the naked owner. An oil and gas leasesigned by either one of them exclusively must beratified by the other, or the non-signing partymust execute a separate lease over the property.Mineral Code Art. 190 (R.S. 31:190.)

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Intestate SuccessionDisposition of Property

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Intestate SuccessionDisposition of Property continued

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Louisiana Minerals

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Mineral Servitudes• In Louisiana, ownership of land does not include ownership of the

oil and gas in and under the land. However, the landowner has theexclusive right to explore and develop the property for theproduction of oil and gas and reduce them to possession andownership. Basically, there is no separate mineral estate recognizedin Louisiana separate and apart from the surface of the land.Mineral Code Art. 6 (R.S. 31:6).

• The landowner may convey, reserve or lease his right to explore anddevelop his land for the production of oil and gas and reduce the oiland gas to possession, creating a “Mineral Servitude.” MineralCode Art. 15 (R.S. 31:15). The Mineral Servitude is heritable, whichmeans it can be bequeathed by Last Will and Testament ortransferred to the deceased owner’s heir through IntestateSuccession. Mineral Code Article 18 (R.S. 31:18).

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Extinguishment of Mineral Servitude

• A Mineral Servitude is extinguished by:

• a) prescription (statute of limitation) resulting from nonuse for ten (10)years;

• i. The prescription of non-use for 10 years is interrupted by goodfaith operations for the discovery and production of minerals, provided:the operations are commenced with reasonable expectation ofdiscovering and producing minerals in paying quantities, they arecontinued at the site chosen and to the chosen depth, and they areconducted in such a manner that they constitute a single operationalthough drilling or mining is not conducted at all times. Mineral Code Art.29 (R.S. 31:29).

• ii. Interruption of prescription takes place on the date the actualcommencement of operations begins. Prescription commences anewfrom the last day on which operations are conducted. Mineral Code Art.30 (R.S. 31:30).

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Extinguishment of Mineral Servitudecontinued

• b) confusion (a situation where the owner of the mineralservitude now owns the land);

• c) renunciation of the servitude;

• d) expiration of a stated term for the servitude or thehappening of a dissolving condition attached to theservitude;

• e) extinction of the right of him who established theservitude (a situation where it is learned the grantor didnot have an ownership interest in and to the servitude thathe purported to convey).

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Mineral Servitude continued

• The Mineral Servitude is defined as “the rightof enjoyment of land belonging to another forthe purpose of exploring for and producingminerals and reducing them to possession andownership.” Mineral Code Art. 21 (R.S. 31:21).Mineral Servitudes generally are extinguishedwithin ten (10) years if there is no explorationor production of minerals. Mineral Code Art.16 (R.S. 31:16).

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Finis

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