Legal
Updates
See legal disclaimer on Page 10
Resolving Ownership Issues with Small Succession Affidavits By Katherine Guidry Douthitt Blanchard, Walker, O’Quin & Roberts, a PLC
Documenting changes in ownership which occur upon the death of a property owner is a universal problem faced by operators in all states. Frequently, the value of the estate is too small to economically justify instituting a probate proceeding, but there is sufficient value or complexity to cause a lessee or operator concern over transferring an interest to the deceased person’s heirs without some legal protection. Louisiana legislators recently made some adjustments to our laws dealing with small successions, which allow, in certain cases, for the recognition of an heir’s ownership in inherited property without judicially opening a succession. See La. C.C.P. arts. 3421 – 3443. Successions meeting the statutory definition of “small succession” are allowed to utilize a simplified process – essentially recording an affidavit of heirship – to dispose of the Louisiana property of deceased persons who died without a will and deceased persons domiciled out of state whose will was probated by court order of another state. The recent changes expand the definition of a small succession, which has made the small succession affidavit procedure more widely available to formally transfer the Louisiana property of qualifying estates. Now, a small succession of a deceased person is defined as either 1) the succession of a person who died with assets located in Louisiana having a total value of not more than $125,000; or 2) the succession of a person who died more than 20 years ago, leaving assets in Louisiana of any value. Previously, a succession could qualify as “small” if the Louisiana estate had a gross value of $75,000 or if more than 25 years had passed since the death of the person for whom the succession would be filed. The increased availability of the small succession affidavit should be useful to reconcile more title matters relating to a deceased person’s property at a lower cost. As an alternative to instituting a probate proceeding for a qualifying estate, a small succession affidavit must be signed by at least two persons, including the surviving spouse and an heir who is at least 18 years old. The affidavit must provide standard information, including
date of death, domicile, address and marital status of the deceased person; confirmation that the deceased person died intestate (separate rules if a will was probated out of state); information regarding the heirs; property descriptions, values and percentages inherited by each heir; and affirmations of acceptance and truth by each affiant. This properly completed and executed affidavit must be recorded in the records of any parish in which immovable property belonging to the succession is situated at least 90 days after the deceased person’s death. Once recorded, this affidavit has the same effect as a Judgment of Possession as to any property described in it. Affidavits of heirship are widely used to informally recognize ownership in property in a deceased person’s heirs. However, an affidavit of heirship alone provides no protection if it is not correct; on the other hand, a small succession affidavit following the law has the same effect as a Judgment of Possession, providing evidence presumed to be correct of the relationship and of the right of the heirs named in that affidavit to possession of the estate. At least in Louisiana, it might be worth considering conforming any form affidavit of heirship to the statutory standard, so that you might be in a position to take advantage of the protections provided by a properly completed, executed and recorded small succession affidavit. We believe that this broadened definition of small succession and expanded availability of the small succession affidavit will be beneficial in quickly resolving ownership issues in more situations at a lower cost, which is a win for all involved.
About the Author:
Katherine Guidry Douthitt Katherine is a partner at Blanchard, Walker, O’Quin and Roberts in Shreveport, Louisiana. Her practice centers on oil and gas transactions and title examination as well as corporate and business matters.
16
N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s
Made with FlippingBook flipbook maker