Dear Ms. Elshout:
Your questions to this office concern the provisions of the Louisiana Code of Civil Procedure providing for the administration of a small succession by the filling of an affidavit.1 Within these articles, the legislature has made it unnecessary for the judicial opening of a small succession, providing instead for the alternative procedure of administering a small succession by the filing of an affidavit. In general terms, the affidavit procedure is available where the person dies intestate, owning property valued at an amount not in excess of the amount defined to be a "small succession." In Act 81 of the 2009 Louisiana Regular Legislative Session, the legislature made changes affecting the affidavit procedure.2 These changes include a change in the definition of "small succession," as Act 81 increases the aggregate value of property defined to be a small succession from $50,000 to $75,000; however, the language of Act 81 specifically makes this change in the definition of small succession effective on and after January 1, 2010.
With reference to Act 81, you ask the following questions: "can a Small Succession by Affidavit be filed on any deceased property owner, no matter the date of death," and further, "is [Act 81] relative only to persons who are deceased after January 1, 2010?"
It is the opinion of this office that all the provisions of Act 81 became effective on June 18, 2009, save one: the change in the law concerning the definition of a small succession. Prior law considered a small succession to be the succession of a person who dies leaving property valued at $50,000 or less. Under Act 81, the aggregate value of a small succession is increased from $50,000 to $75,000 or less. La. C.C.P. art. 3421, as amended by Act 81, now provides: *Page 2
Art. 3421. Small successions defined
A small succession, within the meaning of this Title, is the succession of a person who dies leaving property in Louisiana having a gross value of fifty thousand dollars or less. On and after January 1, 2010, a small succession, within the meaning of this Title, is the succession of a person who dies leaving property in Louisiana, the deceased's interest in which has a gross value of seventy-five thousand dollars or less.
[Emphasis added].
We have examined the provisions of Act 81, and with reference to your first question, it is the opinion of this office that Act 81 does not create a time period in which the affidavit procedure may not be used. Rather, the small succession by affidavit procedure may be used to administer an estate qualifying as a small succession, where the deceased person dies intestate, no matter the date of death, where the affidavit complies with the formalities imposed by law, and all other requirements of law are met.3
It is the further opinion of this office that the provisions of Act 81 are not limited solely to those persons deceased after January 1, 2010, as your second question suggests. With one exception, all the provisions of Act 81 are applicable to those persons deceased prior to and on and after January 1, 2010. The one exception is the change in the law increasing the value of the small succession to $75,000, as it is here that the date of January 1, 2010 is of import. It is the opinion of this office that this change in the law, which permits the use of the affidavit procedure to administer a small succession valued up to $75,000, is applicable only to those persons deceased on and after January 1, 2010.
We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.
Very truly yours,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
BY: __________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:arg
1 See La.C.C.P. arts. 3421, et seq.
2 The other changes in the law made by Act 81 which are relative to the affidavit procedure in a small succession are not at issue, and for this reason are not discussed.
3 See La.C.C.P. art. 3432.