Independent Administration of Succession Proceedings - Helpful New Law
By Act 974 of the Louisiana Legislature of 2001, a very significant change in the law has been made as affects the administration of decedents’ estates. This law became effective on August 15, 2001.
It is more likely than not that there will be no necessity for an administration of your estate following your death. It is most likely that the only legal proceedings necessary will be a simple recognition and possession proceedings. However, if an administration is necessary it could be very beneficial to your legatees and your estate to take advantage of the new law which permits an "Independent Administration" of your estate.
Though you may feel that an administration on your estate will be unnecessary at the present time, circumstances do change. I would recommend that you execute a Codicil to your Will providing for an independent administration of your estate, to cover this contingency. Of course, if you desire to amend any provision in your prior wills such amendments could be provided for in the Codicil also.
If you made your Last Will & Testament prior to 1997, the effective date of the limited abolishment of forced heirship, you may wish to review your Will with that in mind.
The most obvious advantages of an independent administration, following the court recognition of the Will, and the appointment or confirmation of the independent executor/executrix by the court are the following:
The independent executor/executrix can proceed with the administration of the estate without the necessity of obtaining a court order for sales, (including the sales of automobiles, other items of personal property and real estate), leases, mortgages, or entering into other contracts, payments of debts of the decedent or administration expenses, filing of legal actions to enforce and defend succession rights for claims made against the succession, and making partial distributions to legatees prior to completion of succession proceedings. Any distribution of legacies requires prior payment of inheritance taxes; These actions may be taken without filing a request with the court that he/she desires authority, no notice or newspaper advertisement is required, there is no delay in waiting for oppositions to be filed pursuant to such advertisement, nor is there a need for homologating (obtaining permission) from the court to act following the delays which are necessary for the foregoing actions to take place as with successions not under independent administration; Savings in court costs, newspaper advertising and attorney’s fees; and, Relief from the necessity of filing an annual account by the executor/executrix, unless a legatee or creditor, should file a demand with the court requesting the filing of an annual or interim account, an order which could be granted only after the independent executor/executrix was given an opportunity for hearing and to show that the filing of such account was unnecessary. The independent executor/executrix is not relieved of the necessity for maintaining strict records of the receipt of all funds coming in to his/her hands as such, expenditures made, and tangible personal and real property of the estate in his possession or under his control. Sufficient records should be kept to file a final account which would be required at the close of the administration of the estate and the sending of the legatees into possession. The filing of the final account may be waived on the agreement of all legatees. In all matters of estate business the independent executor/executrix is required to act as a prudent administrator with respect to all estate matters.
The handling of an estate under an independent administration can be provided for in the Will, or Codicil. If not provided for in the Will or Codicil, the independent administration may proceed only if all legatees give their written agreement at the time the application for the appointment of an independent executor/executrix is made, or subsequently if agreement can be reached.
If an administration of your estate is unnecessary, and all legatees are in agreement, your legatees may proceed in the usual manner by the filing of a simple recognition and possession proceedings, and there will be no need to confirm the independent executor/executrix.
It is my opinion that the legal proceedings after death should commence as early as possible to:
- Preserve and protest the will and the estate property until rightful legatees or heirs can be put in possession;
- Make a record of all assets while records are available
- Make sure that all debts owed to the deceased are collected
- Pay all debts of the deceased and the estate promptly, including any income, inheritance, or estate taxes
- Make sure that rightful heirs and legatees are put in possession of the property falling to them.
If you wish to discuss any of these matters with F. Jean Pharis, he will be happy to set up a time for a consultation if you will give his office a call, or to discuss the matter over the telephone if that would adequately satisfy any question that you might have.