Trusted Family Law
And Successions Advocacy

How assets are distributed in probate

On Behalf of | May 25, 2021 | Probate

When someone dies in Louisiana, how their assets might be distributed in probate will depend on whether they died with or without a will. If someone dies with a will, the executor named in the will document will be responsible for taking care of the various responsibilities of administering the estate, including paying creditors, paying taxes, inventorying the property, paying court fees, and distributing the assets under the terms of the will. When someone passes away without a will, however, the assets will be passed under the state’s intestacy laws.

Probate when someone dies without a will

When someone dies without a will, the estate will still need to go through probate in most cases. Probate is a legal process through which the assets are distributed and the creditors’ claims are handled before the estate can be closed. The court will appoint someone to serve as the estate administrator. He or she will have similar duties to those expected of an executor. However, how the assets will be distributed will be controlled by the state’s intestacy laws.

Passing of community vs. separate property

If a decedent without a will has separate property that he or she owned before his or her marriage, the assets will pass to the following people by order of priority:

  • Children
  • If no children survive, siblings or their descendants if the siblings are deceased
  • If no children or siblings, the parent or parents
  • If no children, siblings, or parents, the spouse

If the decedent’s estate is comprised entirely or mostly of separate property, a surviving spouse in this scenario might not receive anything. If there is community property with a surviving spouse, the assets will go to the decedent’s children with the surviving spouse receiving the right to use to property for the rest of his or her life. If there are no surviving children, the estate will pass to the surviving spouse. If there is no surviving spouse or children, the assets will pass as if they were separate property.

Estate planning might help to avoid problems with how your assets might be distributed. By writing a will, you might be able to control who receives your assets instead of allowing Louisiana’s intestacy laws control their distribution.