Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
When a Louisiana decedent owned real estate outside Louisiana, heirs may wonder whether they must initiate a formal ancillary succession in the foreign jurisdiction to clear title. Under Louisiana law, immovable property situated in another state generally falls under that state’s succession and recording rules. However, if all heirs agree and the out-of-state tribunal or recorder’s office permits a simplified transfer, formal ancillary probate may be avoidable. The key is to satisfy both Louisiana succession requirements and the recording requirements where the property is located.
1. Confirm Applicable Succession Rules in the Property State
Every state has its own threshold values and procedures for small estates or summary transfers. Common options include:
- Affidavit of Heirship: A sworn statement by heirs detailing the decedent’s death, family tree, and agreement on succession. Some jurisdictions accept this in lieu of probate for estates under a statutory cap.
- Small Estate Affidavit: A streamlined procedure for estates valued under a set dollar limit. Check the relevant statute in the state where the land sits.
- Summary Ancillary Probate: A brief court proceeding limited to the out-of-state property, typically faster and less expensive than full ancillary administration.
2. Gather Louisiana Succession Documentation
Even if you avoid formal ancillary probate, Louisiana heirs should secure evidence of their succession rights:
- Death Certificate: Certified copy from the Louisiana Registrar of Vital Records.
- Succession Judgment or Heirship Affidavit: If a full Louisiana succession occurred, obtain a certified copy of the judgment ordering the estate’s distribution. If the estate qualified for a private partition or heirship affidavit in Louisiana, secure a certified copy of that document. See La. Code Civ. Proc. Art. 1201 (Ancillary Proceedings) (link).
- Family Tree and Heirship Affidavit: Louisiana heirs often execute their own affidavit of heirship under oath, describing intestate kinship. While not binding on courts, it strengthens your transfer package.
3. Satisfy the Foreign State’s Recording or Court Filing Requirements
Contact the clerk or recorder in the county or parish where the real estate is located. Commonly required items include:
- Certified death certificate.
- Certified Louisiana succession judgment or heirship affidavit.
- Affidavit of heirship or small estate form prescribed by the foreign state.
- Proposed deed or transfer instrument signed by all heirs.
- Filing fee or payment for recording.
If the recorder accepts an affidavit of heirship, it typically must be notarized and include the decedent’s date of death, last address, list of heirs by degree, and a statement that no formal probate is pending. Once recorded, you can prepare and record a new deed conveying fee simple title to the heirs or to a designated heir pursuant to a private partition under La. Civ. Code Art. 773 (link).
4. Execute and Record the Transfer Instrument
When the foreign jurisdiction has accepted your package, draft a deed (e.g., quitclaim or warranty deed) conveying the property from the decedent’s estate to the heir(s). All heirs must sign. Submit the executed deed along with any required affidavit or court order. After recording, the title will vest in the new owner(s).
Helpful Hints
- Verify small-estate thresholds in the property state before assuming an affidavit will suffice.
- Use certified copies; recorders often reject uncertified originals or photocopies.
- Confirm whether the foreign state requires a court order or will accept a purely administrative filing.
- Keep track of deadlines; some jurisdictions impose time limits on small-estate affidavits.
- Consult a real estate attorney in the property’s state if the clerk’s office cannot guide you.