Declaration of Death

• Q. My loved one died in the hurricane, but we cannot locate the body.  What do we need to do now?
• A. You will need to take steps to declare your loved one dead.  Louisiana Civil Code, Article 30 presumes death when a person disappears under circumstances where death seems certain, even though a body cannot be located.  Contact the Disaster Assistance Center nearest you for more information.
  If the presumption does not apply, Louisiana has rules for "Absent Persons" allowing declaration of death after 5 years.  See Louisiana Civil Code, Article 54.  The court will appoint a curator to manage the absent person's property until death is declared.
  The Louisiana Legislature is expected to address these issues further in light of Hurricane Katrina.

Wills

• Q. My loved one had a will, but the original was lost in the storm.  What do we do now?
• A. If you have a copy of the will, it can be submitted to the court.  You have to be able to  prove that the original will was lost, and that the deceased person did not want to destroy  it.  You may try contacting the attorney who drafted the will to see if he/she has a copy.
• Q. My loved one wrote a will by hand.  Is this okay?
• A. A handwritten will, called a olographic will in Louisiana, can be a valid will if all of the following conditions are met:
  ? It must be entirely handwritten,
  ? In the deceased person's handwriting, AND
  ? Signed and dated in the deceased person's handwriting.
• Q. I found a "codicil" to my loved one's will.  What is it?
• A. A codicil is a change or addition to a will that has already been signed and dated.
• Q. My loved one made a will in Texas.  Can it be admitted to the Louisiana court?
• A. Yes.  Out of state wills can be admitted to Louisiana courts.  However, if you move to Louisiana from another state, it is wise to make a new will in Louisiana because Louisiana has unusual laws about community property and forced heirship. Similarly, if you move to a new state with a Louisiana will, it's a good idea to make a new will according to that state's requirements.
• Q. My loved one was living in Louisiana, but died in Texas after evacuating from the storm.   Where do I file the will?
• A. The will should be filed in Louisiana, in the parish where your loved one was living  before the storm.  Go to www.lsba.org to check the status of the parish courts.
• Q. What is a tutor?
• A. A tutor is a person named in a Louisiana will who will take physical custody and control  of a minor child until the child reaches age 18.  In Texas, we call this person a guardian.

Intestacy

• Q. My loved one died without a will.  Who will get the property?
• A. When someone dies without a will, that person's property is divided according to Louisiana law.  This process is called "intestate succession."  The person's property will be distributed between his or her spouse and children.  If he or she died without a spouse or children, then it would be distributed to other relatives.  If no relatives can be found, then the property will pass to the state of Louisiana. 
  When someone dies without a will, a court will also determine who will care for the  deceased person's minor children, if the other parent is unable to care for them. 

Succession

• Q. How do I settle my loved one's estate now that he/she has died?
• A. The legal process to settle someone's estate is called "succession" in Louisiana.  In other  states it is called "probate."  This is the process of distributing the person's property, after  making sure that all of the debts have been paid.
• Q. How is property divided when someone dies without a will?
• A. First, attorneys must determine what kind of property the person left behind.  In   Louisiana, there are two kinds of property: Community Property and Separate Property.   Community Property is usually property that a married couple has acquired during  marriage.  Separate Property is property that was owned before marriage, inherited, or a  gift to one of the spouses.
  In Louisiana, the general law when someone dies without a will is that a spouse does not  inherit  any of the other spouse's separate property.  The spouse does not inherit any of  the other spouse's community property either, unless there are no children of the  marriage.  When someone dies without a will, his or her separate property is inherited by  his or her children or other relatives.
• Q. Does all property have to go through succession?
• A. No.  Property that is paid directly to a named person is not subject to succession laws.   Proceeds from life insurance policies and retirement plans with named beneficiaries do  not pass through succession as long as there is a living, named beneficiary.
• Q. What is a usufruct?
• A. A usufruct is a limited right to the use of a piece of property.  If property passes to  children, a spouse may retain a usufruct, or right to use the property, but not the right to sell it.
• Q. My loved one didn't have a lot of property.  Do we still need to go through the succession  process?
• A. Louisiana has a process called the "small succession" or "succession by affidavit."  If the  deceased died:
  ? without a will,
  ? without any real estate, AND
  ? with property valued at less than $50,000,
• then the succession can usually be completed by filing an affidavit with the Louisiana  Department of Revenue.  No formal court filing is needed in a small succession.  Use the  affidavit to transfer titles to vehicles, bank accounts, stocks, bonds and other personal  assets.

Survivor's Benefits

• Q.What kind of benefits might be available to me since my loved one has died?
• A. You may be entitled to life insurance benefits, retirement benefits, or Social Security  survivor's benefits.

Survivor's Benefits, Social Security

• Q. How do I know if I'm entitled to Social Security survivor's benefits?
• A. If your loved one worked long enough to earn Social Security credits, you may be  entitled to Social Security survivor's benefits.  To be eligible to receive survivor's  benefits, you have to be related to the deceased in one of the following ways:
  ? a widow(er) aged 60 or older;
  ? a disabled widow(er) aged 50 or older;
  ? a widow(er) of any age if caring for a child under age 16;
  ? unmarried children, under age 18;
  ? children under the age of 19, but still in high school;
  ? disabled children aged 18 or older; or
  ? parents of a deceased worker, if the deceased worker was their primary means of support.
  If you think you may be eligible for survivor's benefits, you should apply soon because  benefits will be paid from the time you apply, not from the time the worker died.  For  more information, go to www.socialsecurity.gov , or call 1-800-772-1213.
• Q. Is there a lump sum death benefit available?
• A. Yes.  A one time payment of $255 can be paid to the surviving spouse, if the surviving  spouse was living with the deceased or was receiving Social Security benefits on the  deceased's work record.  If there is no surviving spouse, the payment is made to a child  who is eligible for benefits on the deceased's record.

Survivor's Benefits, Life Insurance

• Q. How do I know if I am entitled to collect on a life insurance policy?
• A. You are entitled to collect life insurance proceeds if you are a listed beneficiary in the  deceased's life insurance policy.
• Q. My loved one purchased a life insurance policy and named me a beneficiary.  How do I  make a claim on the policy?
• A. Start the claim process by contacting the insurance company.  If you don't know who the  insurance agent or company is, look for any records that might contain information  identifying the agency, policy or insurer.  For instance:
  ? bills from the insurance company or agency;
  ? insurance renewal notices; or
  ? check registers or bank statements that may show payments made to the insurer.
• For more information, go to the American Council of Life Insurers website: www.acli.com .
• Q. I think my loved one had life insurance benefits through work.  How do I access those?
• A. You will have to contact the employer and inform them that you want to apply for death  benefits on the employer's group life insurance policy.  Request a copy of the Summary  Plan Description (SPD) for the life insurance plan.  Some employers can access the  benefits for you.  Others may not be able to, and you will have to apply for benefits from  the life insurance company, yourself. 
• Q. How long will it take to get benefits after I apply for them?
• A. Life insurance companies try to pay claims within 30 days of receiving a death  certificate.
• Q. What should I do if my claim is denied?
• A. If the insurance was provided by an employer, you must follow the claims procedure set  out in the SPD.  Object to the denial in writing.  Include any new information you have  that will help you prove your claim.
  If you choose to sue the insurance carrier, you must follow the time frames stated in the insurance policy or provided by law.  You should contact an attorney to protect your legal rights.

Survivor's Benefits, Retirement

• Q. What kind of retirement benefits might I be entitled to?
• A. Retirement benefits can include the following:
  ? pensions (defined benefit plans)
  ? 401(k) plans (defined contribution plans)
  ? IRA
• Q. How do I find out what benefits I am entitled to as a beneficiary of a deceased employee?
• A. First, contact the plan administrator or other plan official at the employer or union's  office to get information on how to claim your benefits.
• Ask for the plan's Summary Plan Description (SPD).  It will give a detailed summary of  the plan: how it works, what benefits it provides, and how they may be claimed.
• Q. How are retirement benefits paid under a pension plan?
• A. The form of retirement benefit payments (lump sum annuity) will be described in the plan  and are subject to complex rules.  The plan administrator will provide detailed  information about the various forms of payment.   
• Q. How are retirement benefits paid under a defined contribution plan, like a 401(k)?
• A. Most profit sharing plans and 401(k) plans allow lump sum payments when the employee  dies.
• Q. When should I expect to receive claims from retirement plans?
• A. Claims from retirement plans are usually processed within 90 days.
• Q. Who do I contact if I need more information about collecting retirement benefits from  pension and 401(k) plans?
• A. First, try contacting the plan administrator or union representative.  They will have  specific information on the plans you are dealing with.  For more information, the  Pension and Welfare Benefits Administration of the Department of Labor is also a good  resource for information about your rights under federal law.  Go to www.dol.gov/ebsa .   
• Q. What should I do if I am the beneficiary of an IRA or Individual Retirement Account?
• A. You will have several options.  Your decisions about when and how you receive distributions from the IRA will have tax consequences.  Consult a tax advisor or tax attorney before taking a distribution from an IRA. 
• Contact the IRA custodian for information on how to get a distribution.  The custodian is  the bank or brokerage firm holding the IRA assets.  For more information, see  www.irs.gov.

Taxes

• Q. Do I need to worry about paying taxes for my deceased loved one?
• A. When someone dies, the person administering the estate will need to file an income tax  return for the deceased person.
• Right now, only very large estates have to pay federal estate taxes.  Estates that are  valued at less than 1.5 million dollars do not have to pay federal estate taxes at this time.   This law may change in the future.
  The State of Louisiana has eliminated its inheritance tax for estates of people who died  after July 1, 2004, as long as the estate is processed within nine months of the person's  death.  A judgment of possession or a proceeding to open succession must begin within nine months of the person's death or the state's inheritance tax will be imposed.