For the Good of the Gulf: UNC Law Winter/Spring Break Pro Bono Project

Sunday, March 19, 2006

Succession 101

If you are anything like me, then to hear us say we are working on succession probably doesn’t mean a whole lot. Therefore, I am going to give a brief introductory lesson on what a succession is and how it is achieved.

When someone dies, her land is transferred to her successors. This is called a succession. Depending on the type of property and who was alive at the time the decedent died, the procedure for a succession can get pretty complex.

But before I get too far head of myself, let me explain why an heir needs to establish a succession in the first place. Before an heir can get possession of the property, use it as collateral for loans, or, in the case of the people of New Orleans, receive insurance payout or governmental assistance after the hurricane, he has to open a succession and show that the property is now legally his. To complicate matters even more, sometimes previous generations passed down their property without opening a succession. This means that the new heir has to prove not only his immediate succession, but also that of the previous owner. Let me given an example. Even though a son remained on his parent’s property after their death, title was never transferred to his name. So in order for this son’s daughter to now prove her legal possession of the land to get FEMA assistance, she must first show that the property was legitimately transferred from her grandparents to her father before she can show that it was transferred from her father to her. When someone who is dealing with the death of a loved one is faced with this daunting task, it is easy to lose hope.

Herein steps The Pro Bono Project—and us.

Most of the property we worked with this week was owned by someone who died intestate (or, in other words, they didn’t have a will). The first question to ask is, Was the property was acquired before or after marriage? If it was before marriage, we call this “separate property.” This kind of property first goes to the children, then to the siblings and parents and finally to the spouse. If the property was acquired during marriage, we call this “marital property,” and a slightly different order of inheritance is applied. The only heirs that we consider are those that were alive at the time of the property owner’s death.

The second question we ask is, Is the heir going to accept the property or renounce it? If they accept it, then we make sure they qualify for our assistance. If they renounce it, then we have to send them a letter and a form to secure from them a written renunciation. But wait, you say, why would anyone want to give up free property? There are a few reasons someone would want to renounce their property. First, the process of opening a succession is a hassle, and some people might not want to deal with it. Second, if one heir qualifies for pro bono assistance but another doesn’t, then the two might decide to just let the pro bono office handle it. Finally, the family members might decide that one heir in particular should have the property because they have already been living on it, or because they simply need it the most. Regardless, every eligible heir must be contacted to see whether they want to accept or renounce.

While we are requesting and receiving these renunciations, we are also doing separate research to make sure we have all of the information necessary to complete the documents that must be submitted to the court. For example, we need to know the value of the property and other assets, how much debt the property owner had, and the amount of funeral expenses. We also need to have the property description, any marriage certificates, divorce judgments, birth and death certificates, and adoption papers. Finally, we need to have information on any possible heirs.

Once all of this information is gathered through trips to the court house, city hall, and the convention center, and through numerous phone calls, we can prepare the necessary documents. The first of such documents is the Affidavit of Death, Jurisdiction, and Heirship. This document testifies who the property last belonged to, who the eligible heirs are, and why the petitioner is entitled to possession. Next, we have to write a Petition for Possession. This explains step by step why the property belongs to this particular successor. After the petition, we write the Judgment of Possession, the document that, once signed by the court, actually passes possession to our client. Finally, we have to write the Sworn Detailed Description, which specifies the property and assets in question, as well as any liabilities. Once these documents are completed, the client has to come in and sign them in front a notary public.

The final paperwork to prepare is the tax form. Here we determine whether any inheritance taxes are due. If there are, then the client needs to pay them. Once they are paid, or if there are not any due, this form needs to be taken to the tax office to obtain a receipt. This receipt, along with the affidavit, petition, judgment, and description are all taken to the court house to be signed by the deputy clerk.

And that, ladies and gentlemen, is how a succession is done.

1 Comments:

  • It's an Affidavit of Death, Jurisdiction and Heirship, and you should probably do the Sworn Detailed Descriptive List second, before you prepare the Petition. Great Job all around though! You can work with me anytime!

    By Anonymous Ellen Barrett Artopoeus, at 9:05 PM  

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