LEGAL CORNER: Is a succession always necessary?

Published: Sep. 7, 2022 at 12:08 PM CDT
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Lake Charles, LA (KPLC) - Legal Corner answers viewers’ civil legal questions.

QUESTION: My 85-year-old brother died without a will. He never married and had no children. All he owned beyond personal items was $2,400 in his checking account. The bank said I did not have to do a succession and that all I needed was an affidavit to disburse the $2,400. Is that right?

ANSWER: Yes. The depositor must have died intestate and the amount in the decedent’s account must be under $20,000. The bank is released of liability upon receipt of the affidavit.

People who submit fraudulent affidavits are subject to fines of up $500 and six months jail time.

RS 6:315.1 is self-explanatory and appears below:

LA R.S 6 Section 315.1. Transfer of small deposits; death of depositor; affidavits required; penalties

  • A. Upon the death of a depositor who dies intestate and who has deposits standing in his name alone or jointly with a surviving spouse and heirs, if any, in any depository financial institution, such depository financial institution may pay a sum not to exceed twenty thousand dollars of such deposits to the surviving spouse and heirs, if any, or to the heirs, if there is no surviving spouse, upon receipt of an affidavit establishing jurisdiction and relationship. The affidavit shall also state that the deceased depositor left no will, that the total funds withdrawn do not exceed twenty thousand dollars from all depositories, and that such facts are true and correct.
  • B. The depository financial institution may issue a draft in the amount that the deceased had on deposit payable to the surviving spouse and heirs named in the affidavit described in Subsection A of this Section.
  • C. Receipt by the depository financial institution of the affidavit required in Subsection A of this Section shall be a full release and discharge of the depository financial institution in the transfer of the deposits as to anyone, including any heir, legatee, creditor, or other person having rights or claims to funds or property of the decedent, nor shall the depository financial institution be liable for any estate, inheritance, or succession taxes which may be due to the state.
  • D. Any person who knowingly submits and signs a false affidavit as provided in this Section shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.

Acts 1990, No. 735, §1; Acts 1991, No. 535, §1; Acts 1997, No. 168, §1; Acts 2010, No. 26, §1; Acts 2018, No. 96, §1; Acts 2019, No. 188, §1.

QUESTION: (From the same viewer about the same brother.) My parents and siblings are all deceased. Only one of my siblings had children, three nieces and a nephew. The nephew is deceased. He has three daughters, my great nieces. How do I divide up the $2,400?

ANSWER: Through the concept of representation, the shares of all of the deceased siblings who died with no children all go to the surviving sibling (the viewer) and to the deceased sibling who had heirs.

So half of the money goes to the surviving sibling who is still living and the other half goes to the deceased sibling’s heirs – the three nieces and the deceased nephew’s estate – ¼ a piece.

The deceased nephew’s ¼ would go to his three daughters, who would get 1/3 apiece.

Since the whole amount is $2,400.00 then:

  • Surviving sibling gets: ½ x 2400 = $1,200.
  • Nieces and deceased nephew’s estate get: ½ x 1/4 x $2,400 = 300 each.
  • Great nieces get: ½ x ¼ x 1/3 = $100 each.

The question pretty clearly demonstrates the concepts of intestate inheritance and representation. The specific laws are set out below.

Civil Code Art. 880 (and those following) set out the intestate line of succession

Descendants, then Ascendeants, then collaterals (usually this means siblings), then spouses.

Civil Code Art. 881 sets out the concept of representation – deceased heirs’ descendants can inherit what the heir would have inherited if the heir were still living.

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