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How to take control of Real Estate in a Succession

When real estate is inherited by more than one heir it can get tied up– a stalemate can occur.  Typically, a parent will leave the family home to all their children, but they may not be situated equally.  Consequently, one heir wants to sell and the other does not.  Should the heir who doesn’t want to sell have “veto” power over the property?  Putting the property under  administration and selling it out of the succession is one solution.


Woman Handing Over the House Keys To A New Home Inside Empty Tan Colored Room.

Consider  the following example: One sibling has been living in the family house for years, rent free, while the other sibling
has been financially responsible and lives out of state. If the attorney put both the heirs into possession, each would each get their percentage of ownership, but both would have to agree in order to sell the house and distribute the proceeds.  The sibling who is living in the house rent free has an incentive not to sell, because as part owner he would have the right to continue to live there. The out of state sibling would get no tangible benefit from being a co-owner.  This produces the stalemate I was talking about.  One wants to sell, one does not – as a consequence the house cannot be sold.*

As attorney for the estate I have advised putting the succession under administration and selling the house out of the open succession.  With this scenario, each heir benefits equally.  The heir who opens the succession applies to the court to be named as administrator of the estate. Any interested party can object on the basis that they are unfit for the office.  But if there are no objections, and it is rare to have an objection, the administrator is empowered to make decisions for the succession, including selling assets to pay off the heirs.

There are two ways that estates can be put under administration in Louisiana.  The standard mode requires court approval for each administrator’s decision. The other way is called an independent administration, and gives wide latitude to the administrator.  Either way, with or without court approval, the administrator can list the house for sale with a real estate agent and at the closing sign for the succession. The sales proceeds are deposited in the succession’s bank account and ultimately divided among the heirs.

 

* The asterisk refers to the type of lawsuit called a partition by licitation. A co-owner can sue to have a property legally sold at auction, whether or not the co-owners agree. This is an expensive option and a sale at a public auction does not fetch the highest price.

 

Does a Succession Containing Real Estate Have to be Judicially Opened?

If the estate is valued at $75,000.00, or less, you don’t have to open a judicial succession. Even if it contains immovable property. Seventy-five thousand dollars doesn’t buy much of a house, but consider this. If the person was married and in community, the value of the decedent’s interest in the jointly owned property is half the market value. Surely, there are many properties in New Orleans, Metairie and Covington worth $150,000.00, or less.

JohnMenszer2-Crop_-2510Instead of opening a succession judicially the heirs merely execute an affidavit. The affidavit must contain the date of death, the marital status of the decedent, the names and addresses of the heirs, a description of the property of the estate with its value at the date of death and a statement that the person died without a will.

To transfer the real estate the affidavit is filed in the public conveyance records. There is no filing of a succession lawsuit, no filing fees to pay, no drafting of all the required documents and no judgment of possession to be signed by a judge. There is just a simple affidavit of nine points that can be executed in the lawyers office.

The main requirements are these. The deceased must have died without a will. The aggregate estate of all the property must be $75,000.00, or less. At least two heirs must sign the affidavit and if there is a surviving spouse one of the two heirs must include the spouse. Nothing could be simpler.