Download pdf - Successions - lba.org 2013 manual.pdfSUCCESSIONS 1. Successions Succession is the transmission of the estate of the deceased to his/her successors. The successors thus have the right

Successions

2013 Presented by:

Gettechnical, Inc.

404 N. Burnside Ave.

Suite A

Gonzales, LA 70737

Phone: (800) 354-3051

Fax: (225) 644-1225

[email protected]

www.gettechnicalinc.com

Successions 2 | P a g e ©Gettechnical inc.

The material used in this text has been drawn from sources believed to be reliable. Every effort has been made to

assure the accuracy of the material; however, the accuracy of this information is not guaranteed. The laws are often

changed without prior notice from the government. The publisher and the editor are not engaging in the practice of

law or accounting. We are not responsible for the actions of your company's employees.

The text is designed to address most deposit account documentation issues. However, you will wish to consult your

attorney when you are unsure of an answer.

©gettechnical inc.

404 N. Burnside Ave. Suite A Gonzales, LA 70737 Office 1-800-354-3051 Fax: 1-225-644-1225 E-mail: [email protected] Website: www.gettechnicalinc.com

All rights reserved. This material may not be reproduced in whole or in part in any form or by any means without written permission from the publisher.

Printed in the United States of America.

Acknowledgments:

Special thanks to Harry Molaison of the legal firm Molaison & Greenberg , LLC located in Gretna (504) 366-4336 for

his special assistance in developing the flow charts and sample affidavits. His experience with succession law has

been invaluable.

mailto:[email protected]

http://www.gettechnicalinc.com/


TABLE OF CONTENTS

OVERVIEW ............................................................................................................................................................. 6

INTRODUCTION .............................................................................................................................................................. 7

SUCCESSIONS ............................................................................................................................................................. 8

PROBATE PROCESS ..................................................................................................................................................... 9

EXERCISE: OVERVIEW .......................................................................................................................................... 10

QUIZ: OVERVIEW ................................................................................................................................................ 11

INTESTATE SUCCESSIONS—WITHOUT A WILL.......................................................................................................... 12

TESTATE SUCCESSIONS—WITH A WILL .................................................................................................................... 13

JUDGMENT OF POSSESSION .................................................................................................................................... 14

EXERCISE: TESTATE AND INTESTATE SUCCESSIONS ............................................................................................. 15

QUIZ: TESTATE AND INTESTATE SUCCESSIONS .................................................................................................... 16

DECISION TREE ......................................................................................................................................................... 17

RECEIPT OF NOTICE .................................................................................................................................................. 19

EXERCISE: DEATH OR INTERDICTION OF CUSTOMER ........................................................................................... 21

QUIZ: DEATH OR INTERDICTION OF CUSTOMER .................................................................................................. 22

INDIVIDUAL ACCOUNTS ........................................................................................................................................... 23

JOINT ACCOUNTS (EITHER/OR ACCOUNTS) ............................................................................................................. 24

LAW: R. S. 6:312 ALTERNATIVE DEPOSITS, PAYMENT ................................................................................................... 25

EXERCISE: ALTERNATIVE JOINT ACCOUNTS ......................................................................................................... 26

QUIZ: INDIVIDUAL AND JOINT ACCOUNTS ........................................................................................................... 27

MANDATARY (POWER OF ATTORNEY) ..................................................................................................................... 29

LAW: POWER OF ATTORNEY—CIVIL CODE .............................................................................................................. 30

EXERCISE: MANDATARIES .................................................................................................................................... 33

QUIZ: MANDATARIES ........................................................................................................................................... 34

REVOCABLE INFORMAL TRUST ACCOUNTS (PAYABLE ON DEATH) ........................................................................... 35

CHECKLIST FOR REVOCABLE INFORMAL TRUST (POD) ............................................................................................. 36

SAMPLE OF INFORMAL TRUST ACCOUNT AFFIDAVIT ............................................................................................... 37

LAW: R. S. 6:314 TRUST DEPOSITS; DEATH OF DEPOSITOR, PAYMENT .................................................................... 38

LAW: AUTHENTIC ACT ............................................................................................................................................. 40

EXERCISE: TRUST DEPOSITS; DEATH OF DEPOSITOR; PAYMENT.......................................................................... 41

QUIZ: INFORMAL TRUST ACCOUNTS ................................................................................................................... 42

TRANSFER OF SMALL DEPOSITS—R. S. 6:315.1 ($5,000 OR LESS IN DEPOSITS) ........................................................ 44

CHECKLIST FOR SMALL DEPOSIT PAYOUT ................................................................................................................ 45

LAW: R. S. 6.315.1 TRANSFER OF SMALL DEPOSITS; DEATH OF DEPOSITOR; AFFIDAVITS REQUIRED; PENALTIES ... 46

EXERCISE: TRANSFER OF SMALL DEPOSITS .......................................................................................................... 48

SURVIVING SPOUSE ACCESS TO DECEDENT’S ACCOUNTS ........................................................................................ 49

SAMPLE OF AN AFFIDAVIT........................................................................................................................................ 50

LAW: R. S. 9:1513 PAYMENT TO SURVIVING SPOUSE WITHOUT COURT ................................................................ 51

PROCEEDINGS .......................................................................................................................................................... 51


EXERCISE: PAYMENT TO SURVIVING SPOUSE WITHOUT COURT PROCEEDINGS ................................................. 53

QUIZ: SURVIVING SPOUSE .................................................................................................................................. 54

SMALL SUCCESSIONS—NO WILL—ESTATE $75,000 OR LESS WITH HEIRS ............................................................... 55

SMALL SUCCESSIONS—NO WILL-ESTATE $75,000 OR LESS WITHOUT HEIRS ........................................................... 56

CHECKLIST FOR HANDLING A SMALL SUCCESSIONS ($75,000) ................................................................................. 57

LAW: SMALL SUCCESSIONS—CODE OF CIVIL PROCEDURE ...................................................................................... 58

EXERCISE: SMALL SUCCESSIONS .......................................................................................................................... 62

QUIZ: SMALL SUCCESSIONS ................................................................................................................................. 63

FORMAL VALID SUCCESSIONS .............................................................................................................................. 64

OVERVIEW OF FORMAL VALID SUCCESSIONS .......................................................................................................... 65

CLOSING OUT ACCOUNTS ........................................................................................................................................ 66

CHECKLIST FOR A FORMAL SUCCESSION .................................................................................................................. 67

OPENING THE ESTATE ACCOUNT—WITH A WILL ..................................................................................................... 68

OPENING THE ESTATE ACCOUNT—WITHOUT A WILL .............................................................................................. 69

CHECKLIST FOR OPENING A SUCCESSION ACCOUNT ................................................................................................ 70

EXERCISE: OPENING A SUCCESSION ACCOUNT .................................................................................................... 71

QUIZ: OPENING A SUCCESSION ACCOUNT ........................................................................................................... 72

FORMAL VALID SUCCESSIONS—USUFRUCT ACCOUNTS .......................................................................................... 73

LAW: C.C. ART. 890 USUFRUCT ACCOUNTS ............................................................................................................. 74

QUIZ: USUFRUCT ACCOUNTS ............................................................................................................................... 75

POWER OF ATTORNEY ............................................................................................................................................. 76

LAW: R. S. 9:1517 CERTAIN SUCCESSION REPRESENTATIVES; POWER OF ATTORNEY ............................................ 77

QUIZ: POWER OF ATTORNEY ............................................................................................................................... 78

PAYMENT TO FUNERAL HOMES ............................................................................................................................... 79

LAW: C.C. ARTICLE 3191 SECTION 1 OF GENERAL PRIVILEGES ON MOVABLES ....................................................... 80

EXERCISE: PAYMENT TO FUNERAL HOMES .......................................................................................................... 81

QUIZ: PAYMENT TO FUNERAL HOMES................................................................................................................. 82

PREPAID FUNERAL SERVICES OR MERCHANDISE ..................................................................................................... 83

LAW: PREPAID FUNERAL SERVICES OR MERCHANDISE ........................................................................................... 84

EXERCISE: PREPAID FUNERAL SERVICES OR MERCHANDISE ................................................................................ 88

QUIZ: PREPAID FUNERAL SERVICES OR MERCHANDISE ....................................................................................... 89

BUSINESS ACCOUNTS ........................................................................................................................................... 91

SOLE PROPRIETOR.................................................................................................................................................... 92

PARTNERSHIP ........................................................................................................................................................... 93

CORPORATION ......................................................................................................................................................... 94

LAW: THE CONTINUATION OF BUSINESS—CODE OF CIVIL PROCEDURE ................................................................. 95

EXERCISE: BUSINESS ACCOUNTS .......................................................................................................................... 96

QUIZ: BUSINESS ACCOUNTS ................................................................................................................................. 97

TRUST & CUSTODIAL ACCOUNTS ......................................................................................................................... 98

FORMAL REVOCABLE LIVING TRUST ........................................................................................................................ 99

FORMAL IRREVOCABLE TRUST ACCOUNT .............................................................................................................. 100

DECLARATION OF SUCCESSOR TRUSTEE ................................................................................................................ 101

MINOR ACCOUNTS—UNIFORM TRANSFER TO MINORS ACCOUNT ....................................................................... 102


FLOWCHART: UTMA AT DEATH ............................................................................................................................. 103

LAW: R.S. 9:768 RENUNCIATION, RESIGNATION, DEATH, OR REMOVAL OF CUSTODIAN; DESIGNATION OF

SUCCESSOR CUSTODIAN (UTMA) ........................................................................................................................... 104

EXERCISE: UTMA ................................................................................................................................................ 105

QUIZ: UTMA ....................................................................................................................................................... 106

CUSTOMER OPTIONS ......................................................................................................................................... 107

OPTIONS FOR CUSTOMERS WORKSHEET ............................................................................................................... 108

PROBLEMS ............................................................................................................................................................. 109

APPENDIX .......................................................................................................................................................... 110

SAMPLE SUCCESSION DOCUMENTS ....................................................................................................................... 111

LAW SUIT KENNEDY VS. FAGAN ............................................................................................................................. 141


OVERVIEW


INTRODUCTION

We will look at many of the issues that face our customer’s families at death of a loved one. We have many different options on the way to a formal succession. Some families will use account ownership such as Payable on Death to help move assets forward and some will use affidavits to move assets to loved ones. The death of an account owner usually ends will an Executor or Executrix being named and either a Judgment of Possession being issued by the court or Letters Testamentary or Administration issued so that the estate can be handled after death. All of these options will be examined in this program and we will look at some special accounts such as usufruct and prepaid funeral home accounts. Lesson objectives:

Recognize the legal paperwork for successions

Understand common terminology in the succession process Learn the place for affidavits in the succession process Learn how to pay out accounts after death using different paperwork Who has access to accounts after death What happens on business accounts, trusts and custodian accounts if the customer dies


SUCCESSIONS

1. Successions Succession is the transmission of the estate of the deceased to his/her successors. The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law. Article 871 Civil Code 2. Estate The estate of a deceased means the property, rights, and obligations that a person leaves after death, whether the property exceeds the charges or the charges exceed the property, or whether he/she has only left charges without any property. The estate includes not only the rights and obligations of the deceased as they exist at the time of death, but all that has accrued thereto since death, and the new charges to which it becomes subject. Article 872 Civil Code 3. Kinds of Successions a. Testate: With a will.

A testate succession results from the will of the deceased, contained in a testament executed in form prescribed by law. Article 874 Civil Code

b. Intestate: Without a will. Intestate succession results from provisions of law in favor of certain persons, in default of testate successors.

Article 875 Civil Code 4. Kinds of Successors a. Testate successors called legatees. b. Intestate successors called heirs.


PROBATE PROCESS

1. Preliminary Procedures

a. Petition for Probate

b. Documents Submitted

c. Search for Testament

d. Probate Hearing/Witnesses

e. Process Verbal

f. Time Period

2. Types of Wills

a. Olographic Testament

(Sample Appendix A-9)

b. Nuncupative Testament

c. Mystic Testament

d. Statutory Testament

(Sample Appendix A-10)

e. Foreign Testament

3. Administration

a. Inventory

b. Files Taxes

c. Pay Debts

d. Pay Heirs/Legatees

e. Close Estate


EXERCISE: OVERVIEW

1. Pull a Succession account recently opened at your bank and look at the documents brought to

the bank.

2. Find a sample of Judgment of Possession

3. Find a sample of Letters Testamentary or Letters of Administration

4. List the differences in the above two types of documents:


QUIZ: OVERVIEW

1. The estate of a deceased person means the property, rights, and obligations that a person

leaves after death.

a. True

b. False

2. Testate means that the customer died without a will.

a. True

b. False

3. Which statement is true concerning successors?

a. Testate successors are called legatees

b. Intestate successors are called heirs

c. A and B

4. The following are types of wills in Louisiana:

a. Olographic

b. Nuncupative Testament

c. Mystic Testament

d. Statutory Testament

e. A and B only

f. A, B, C and D

5. During the administration process, the following happens except:

a. Inventory

b. File Taxes

c. Pay debts

d. Set up a living trust

e. Pay heirs

f. Close Estate

1. a, 2.b, 3.c, 4.f, 5.d

Successions 12 | P a g e ©Gettechnical ic. 2013

INTESTATE SUCCESSIONS—WITHOUT A WILL

1. Overview When you die in Louisiana without a will, the state law determines who will inherit a person’s assets and in what portion. The court will name an administrator to do an inventory, pay debts, files taxes and pay beneficiaries. The administrator is required to act in a responsible manner. 2. Sending heirs into possession When all the heirs accept the succession unconditionally, the heirs and surviving spouse can be sent into possession of the property through a Judgment of Possession if the estate is relatively free of debt. If there is conflict, debt or the security cannot be posted as required then the estate will go through an administration. 3. Creditor may demand security A creditor having a claim against the succession may file in the succession proceeding, within three months of the date of the judgment of possession, a contradictory motion against all parties to compel them to furnish security. A creditor may demand security when heirs are sent into possession.


TESTATE SUCCESSIONS—WITH A WILL

1. Overview A testate succession involves a will. The will can be handwritten or written by an attorney. If there is a will, it is filed at the parish courthouse. The executor of the estate is the person named in the will to handle the inventory of assets, payment of debts and delivery of inheritance to beneficiaries. The executor is held to a high standard of prudence and care in all actions. 2. Sending legatees into possession When the will has been probated, the court may send the legatees into possession upon their petition when the legatees accept the succession unconditionally and the succession is relatively free of debt. Relatively free of debt means that the only debt is the succession charges, mortgages not in arrears, and debts which are small in comparison with the assets of the succession. 3. Creditors A creditor having a claim against the succession may file in the succession proceeding, within three months of the date of the judgment of possession, a contradictory motion against all parties to compel them to furnish security. A creditor may demand security when legatees are sent into possession.


JUDGMENT OF POSSESSION

1. Overview

A judgment of possession is a court order which recognizes the heirs, legatees, surviving spouse in

community, or usufructuary as the case may be of the decedent assets. It is often used when the

estate is relatively free of debt and the heirs are clearly identified as a method to give them

possession and use of the assets even before the estate is settled. It is prima facie evidence of

ownership.

2. Requirements

Court issued.

3. Effect

The judgment is considered prima facie evidence of the relationship to the deceased party and the

right to the possession of the estate of the deceased.


EXERCISE: TESTATE AND INTESTATE SUCCESSIONS

1. Describe what an intestate succession is:

2. Describe what a testate succession is:

3. What is the difference in the paperwork?

4. What does a Judgment of Possession do?


QUIZ: TESTATE AND INTESTATE SUCCESSIONS

1. When you die in Louisiana without a will, the state law does not decide who gets a person’s

property.

a. True

b. False

2. If the estate is relatively free of debt, a Judgment of Possession can send the heirs into

possession of the property.

a. True

b. False

3. Which of the following is true about a testate succession:

a. Involves a will

b. Will can be handwritten or done by an attorney

c. Will is filed at the courthouse

d. The executor of the estate is the person named in the will to handle the inventory of

assets, payment of debts and delivery of inheritance to beneficiaries.

e. All of above

f. A and B only

4. A Judgment of Possession is a court order which recognizes the heirs, legatees, surviving spouse

in community and is often used when the estate is relatively free of debt to pay the heirs.

a. True

b. False

1. b, 2.a, 3.e, 4.a.


DECISION TREE

This is a summary chart of the entire process of working with customers.


WHEN CUSTOMER IS DECEASED

(Under Louisiana State Banking and Succession Law)

Yes

Send To Outside Lawyer

No Written Stop

Payment Order

Received

Judgment of

Possession

Letters Testamentary/Letters of

Administration

Joint Depositor

Requesting

Authorized

Signatory or

Account

P.O.D. Trust

Account

Pay Joint Owner Written Notice of

Death Received

Depositors

Affidavit in File

Surviving Spouse

or Heirs

Pay Executor /

Administrator Pay Heirs /

Legatees

No No No No No

Yes Yes

Yes

Yes Yes Yes

Honor Checks

Written

Honor Checks

For 10 Days

From Death Only

Yes

No

Adequate

Evidence of

Death

Pay Designated

Beneficiary

Yes

Yes

No

Intestate

Customer or

Spouse

affidavit

$5,000 or less

Intestate Banking

Statute Only

$5,000 Affidavit

Pay Surviving

Spouse and All

Heirs

Yes

Yes

Yes

Surviving Spouse

Alone $10,000 or

Less

$75,000 or Less

Intestate Assets $75,000 includes home

May require filing at the parish court house

$10,000 Affidavit

Executed

Pay Surviving

Spouse*

(

No

Yes

Yes Yes

No

No

No

No No

*Credit Union spouse

statute includes heirs


RECEIPT OF NOTICE

1. Notice Requirement

Effective January 1, 1994 a financial institution is not liable for the payment of a check before it has notice of

the death or incompetence of the drawer. A 10 day period after death to pay checks (not items) is allowed

so that these checks will not have to be filed in probate. The financial institution must receive written

notice, addressed to the financial institution of the death of the customer.

2. Contract

The financial institution is required to deal with its customer according to its contract until it receives

written notice, addressed to it in writing of the customer's death. The notice has to be more than a copy of

a newspaper notice. The financial institution is not responsible for reading the obituaries to determine

whether or not any of its customers are deceased.

3. 10 day period from date of death

The 10 day period is from date of death (not 10 days from day of notice). During this 10 day period the

financial institution may pay checks (not items) written on the account.

4. Executor

This new law does not prevent an executor or administrator from recovering the payment of any checks

paid during the 10 day period. It is not intended to affect the validity of any gift or other transfer in

contemplation of death, but merely to relieve the financial institution of liability for the payment.

5. Freeze

Any surviving relative, creditor or other person who claims an interest in the account may give a direction to

the financial institution not to pay checks, or not to pay a particular check. Such notice has the same effect

as a direction to stop payment. The financial institution has no responsibility to determine the validity of

the claim. But obviously anyone who has an interest in the estate, including the person named as executor

in a will, even if the will has not yet been admitted to probate, is entitled to claim an interest in the account.



EXERCISE: DEATH OR INTERDICTION OF CUSTOMER

1. Read R. S. 10:4-405

a) What does it say about notice of death?

b) What does it say about what do when you receive notice of death?


QUIZ: DEATH OR INTERDICTION OF CUSTOMER

1. Betty Fontenot died on November 1. You receive notice of her death on November 15. Can you

continue to pay checks that come in after that date?

a. Yes

b. No

2. If Betty Fontenot died on August 1 and you received written notice on August 7. How many

days would you be able to pay checks?

a. 10

b. 7

c. 3

d. 2

3. What if Betty had an automatic debit to her account? May you pay debits?

a. Yes

b. No

4. Does the financial institution have to pay checks after it receives notification of death?

a. Yes

b. No

5. The following constitutes "written notice":

a. Obituary

b. Letter from the decedent's attorney

c. Letter from the decedent's spouse

d. Newspaper article

e. Customer verbally tells you spouse is deceased

f. You attend the funeral

g. b, c only

h. all of above

1. b, 2.c, 3.b, 4.b, 5.g


INDIVIDUAL ACCOUNTS

1. One owner before written notice

An individual account is an account with only one owner on the account. This account may have another

signer usually called an "authorized or convenience signer". Before written notice at the death of the

owner, the authorized signer may continue to write checks without any liability to the financial institution.

The financial institution can continue to operate according to its contract.

2. Written notice addressed to the financial institution

Once the financial institution receives written notice addressed to it, the financial institution may pay checks

written on the account 10 days from the date of death. The account will be frozen and we will wait to

receive an affidavit if one applies or a court order.


JOINT ACCOUNTS (EITHER/OR ACCOUNTS)

1. Overview

An alternative joint account is one where the funds are owned by two or more persons and can be payable

to anyone of such depositors whether or not the financial institution has knowledge as to the death of any

one of them.

2. Procedures

a) Notice:

i. Before receipt of notice addressed to the financial institution in writing of the death of

an account owner, the financial institution continues to pay according to its signature

card contract.

ii. After notice in writing addressed to the financial institution, the joint owner still has

access.

iii. In case of conflict between joint depositors or other interested parties, the financial

institution has the right to freeze the account and have everyone sign on each check.

b) Court Order: Once the financial institution receives a court order, they can release funds to

the heirs or legatees regardless of the other joint owners. The financial institution has no

obligation to inquire into origin of funds on deposit or into any particular interest a joint

depositor could have over that of any other joint depositor. The financial institution has no

obligation to notify the remaining joint depositors of the court order for the deceased

person.


LAW: R. S. 6:312 ALTERNATIVE DEPOSITS, PAYMENT

R. S. 6:312. Alternative deposits, payment

A. When a deposit is made in any bank under the names of two or more persons payable to any one of such

depositors, that deposit or any part of it or any interest or dividend on it may be paid to any one of such depositors,

whether the other depositor or depositors be living or not, and the receipt or acquittance of the person paid is a full

release and discharge of the bank as to any heir, legatee, creditor, or other person having rights or claims to funds of

such deceased depositor for any payment made; nor shall any bank paying any such depositor in accordance with the

provisions of this Section thereby by liable for any estate, inheritance, or succession taxes that may be due this state.

B. (1) When any such deposit is made in any bank under the names of two or more persons payable to any one of

such depositors, if one such depositor seeks to prevent payments from that account, that depositor must give

written notice of his desire to prevent payment. The notice must be signed by him and delivered to the bank.

After the receipt of such notice from one or more of such depositors, the bank may refuse to honor any check,

draft or demand upon said deposit* or by any of the depositors, including the one or ones requesting the

stopping of payment, unless all of the depositors upon the said account join in drawing such a draft or check or

demand for payment or other withdrawal of any of the funds.

(2) In the event any bank has received a notice in writing as provided by this Subsection, or a notice provided in

R. S. 10:4-403, such bank shall be relieved of responsibility to each and every one of the depositors upon the

account or deposit in question for failure or refusal to honor any check or draft or demand for payment or other

withdrawal unless the action is taken by all of the parties in whose names the account or deposit stands.

C. The pledge to a bank of all or part of the deposits in the names of two or more persons, including but not limited to

time accounts, savings accounts, or certificates of deposit, executed by a person upon whose signature withdrawals

may be made, shall, unless the terms of the deposit provide specifically to the contrary, be a valid pledge to the bank

of all the deposits pledged.

D. Notwithstanding the provisions of R. S. 9:1513 or 1514, or any similar provision, the provisions of this Section

establish the exclusive method for payment of funds from an alternative account.

E. Notwithstanding any other law to the contrary any federally insured financial institution may by contract prohibit

or otherwise limit the pledge, assignment, collateral assignment, or granting of any other type of security interest in

any deposit account maintained or established at such institution, including those deposit accounts evidenced by

certificates of deposit issued by such institution.

Acts 1984, No. 719, §1, eff. Jan. 1, 1985; Acts 1988, No. 118, §1; Acts 1989, No. 137, §3, eff. Sept. 1, 1989; Acts

1993, No. 948, §1, eff. Jan. 1, 1994; Acts 2001, No. 128, §3, eff. July 1, 2001; Acts 2004, No. 42, §1.


EXERCISE: ALTERNATIVE JOINT ACCOUNTS

1. Read R.S 6:312 Alternative Joint Accounts

a) What does section A say about paying depositors after death?

b) What does section B say about paying depositors when there is a conflict?


QUIZ: INDIVIDUAL AND JOINT ACCOUNTS

1. Bob Smith died and his girlfriend is the authorized signer on his account. The financial

institution was not notified of death. Is there any liability for the financial institution if the

girlfriend's checks are paid by the financial institution?

a. Yes

b. No

2. What will happen on a Jim and Mary account if Jim dies?

a. Account freezes at death

b. Executor can sign for Jim

c. A and B

3. What if you did not know the joint owner was dead and did not get a receipt of notice?

a. Parties on account continue to use

b. Bank has no liability

c. A and B

4. What if the executor got to the joint account first and wanted to close it as part of the estate?

a. Executor has no access

b. Executor has access with proper paperwork

5. Do the heirs have to give notice to the other joint owner(s) before making the withdrawal with a

court order or surviving spouse affidavit?

a. Yes

b. No

6. Joe Smith and his brother Bob Smith opened a joint checking account for investment purposes.

Joe put $40,000 into the account and Bob put up $10,000. At Joe's death Bob comes in and

wants to withdraw $50,000? What is the financial institution supposed to do? Assume no

written notification of death.

a. Give Bob the money

b. Do not give Bob the money


7. When, if ever, do we have to freeze the accounts of the deceased?

a. An interested party writes in after death and asks bank to free

b. Never have to freeze

1. b, 2.c, 3.c, 4.b, 5.b, 6.a, 7.a


MANDATARY (POWER OF ATTORNEY)

1. Description A mandatary is an act by which one person gives power to another to transact for him/her one or several affairs. It is always a good idea to have your financial institution's attorney read and approve these documents before you accept it. No financial institution has to accept a mandatary (power of attorney) from the outside, but in accepting the document you are bound by it. The mandatary should sign the signature card contract and the mandatary be placed in file. Usually, the attorney will sign "James Smith by Joe Smith, attorney-in-fact". There are other ways of signing, please consult your financial institution's attorney before you write your procedures on mandataries. 2. When mandataries (powers of attorney) cease

a. Death. b. Interdiction of mandataries. c. Curator appoint for principal.

3. Revocation A mandatary (power of attorney) may be revoked. If the principal does not tell the financial institution then the principal will be bound by acts of the agent. The principal will have the right of action against the attorney. 4. Special Considerations There are many issues which should be addressed by the financial institution’s procedures on mandataries. Examples:

a. Will your financial institution accept more than one mandatary? b. Will you accept mandataries on joint accounts if all the owners do not agree? c. Should all mandataries be reviewed by legal counsel?


LAW: POWER OF ATTORNEY—CIVIL CODE

Civil Code Title XV. Representation and Mandate Book III, Title XV, of the Louisiana Civil Code of 1870 (of Mandate), consisting of Articles 2985 it 3034, was revised, amended, and re-enacted by acts 1997, No. 261, 1, effective January 1, 1998, to consist of Articles 2985 to 3032. Section 2 of acts 1997, No. 261 provides: “This act shall apply to existing mandates and procurations, unless the application would impair obligations or vested rights.” Art. 2985. Representation. A person may represent another person in legal relations as provided by law or by juridical act. This is called representation. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2986. The authority of the Representative. The authority of the representative may be conferred by law, by contract, such mandate or partnership, or by the unilateral juridical act of procuration. Amended by Acts 1871, No. 87; Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2987. Procuration defined: person to whom addressed. A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations. The procuration may be addressed to the representative or to a person with whom the representative is authorized to representative is authorized to represent the principal in legal relations. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2988. Applicability of the rules of mandate. A procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2989. Mandate defined. A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998.

Art. 2990. Applicability of the rules governing obligations. In all matters for which no special provision is made in this Title, the contract of mandate is governed by the Titles of “Obligations or Contracts.” Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2991. Interest served. The contract of mandate may serve the exclusive or the common interest of the principal, the mandatary, or a third person. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2992. Onerous or gratuitous contract. The contract of mandate may be either onerous or gratuitous. It is gratuitous in the absence of contrary agreement. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2993. Form. The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in the form. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2994. General authority. The principal may confer on the mandatary general authority to do whatever is appropriate under the circumstances. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2995. Incidental, necessary, or professional acts. The mandatary may perform all acts that are incidental to or necessary for the performance of the mandate. The authority granted to a mandatory to perform an act that is an ordinary part of his profession or calling, or an act that follows from the nature of his profession or calling, need not be specified. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2996. Authority to alienate, acquire, en-cumber, or lease.


The authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2997. Express authority required. Authority also must be given expressly to : (1) Make an inter vivos donation, either outright or

to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.

(2) Accept/ renounce a succession. (3) Contract a loan, acknowledge or make remission

of debt, or become surety. (4) Draw or endorse promissory notes and

negotiable instruments. (5) Enter into a compromise or refer a matter to

arbitration. (6) Make health care decisions, such as surgery,

medical expenses, nursing home residency, and medication.

Amended by Acts 1981, No. 572,§ 1; Acts 1990, No. 184,§ 1; Acts 1992, No. 304,§ 1; Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998; Acts 2001, No. 594,§ 1. Art. 2998. Contracting with one’s self A mandatary who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal, or, in making such contract, he is merely fulfilling a duty to the principal. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 2999. Person of limited capacity A person of limited capacity may act as a mandatary for matters for which he is capable of contracting. In such case, the rights of the principal against the mandatary are subject to the rules governing the obligations of persons of limited capacity. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3000. Mandatary of both parties. A person may be the mandatary of two or more parties such as a buyer and a seller, for the purpose of transacting one or more affairs involving all of them. In such a case, the mandatary must disclose to each party that he also represents the other. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998.

Art. 3001. Mandatary’s duty of performance; standard of care. The mandatary is bound to fulfill with prudence and diligence the mandate he has accepted. He is responsible to the principal for the loss that the principal sustains as a result of the mandatary’s failure to perform. Amended by Acts 1979, No. 711,§ 1; Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3002-3023. See Civil Code Art. 3024. Termination of the mandate and the mandatary’s authority. In addition to causes of termination of contracts under the Titles governing “Obligations in general” and “Conventional Obligations or Contracts,” both the mandate and the authority of the mandatary terminate upon the: (1) Death of the principal or of mandatary. (2) Interdiction of the mandatary. (3) Qualification of the curator after the interdiction

of the principal. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3025. Termination by principal. The principal may terminate the mandate and the authority of the mandatary or of a third party, may be irrevocable, it the parties so agree, for as long as the object or the contract may require. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3026. Incapacity of the principal. In the absence of contrary agreement, neither the contract nor the authority of the mandatary is terminated by the principal’s incapacity, disability, or other condition that makes an express revocation of the mandate impossible or impractical. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3027. Reliance on public records. Until filed for recordation, a revocation or modification of a recorded mandate is ineffective as to the persons entitled to rely upon the public records. Amended by Acts 1882, No. 19; Acts 1981, No. 303,§ 1; Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3028. Rights of third persons without notice of revocation. The principal must notify third persons with whom the mandatary was authorized to contract of the revocation of the mandate or of the mandatary’s authority. If the principal fails to do so, he is bound to


perform the obligations that the mandatary has undertaken. Amended by Acts 1882, No. 19; Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3029. Termination by the Mandatary. The mandate and the authority of the mandatary terminate when he notifies the principal of his resignation or renunciation of his authority. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3030. Acts of the mandatary after princi-pal’s death. The mandatary is bound to complete an undertaking he had commenced at the time of the principal’s death if delay would cause injury. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3031. Contracts made after termination of the mandate or the mandatary’s authority. If the mandatary or his authority has terminated and enters into contract with a third person who is in good faith, the contract is enforceable.

Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998. Art. 3032. Obligation to account. Upon termination of the mandate, unless this obligation has been expressly dispensed with, the mandatary is bound to account for his performance to the principal. Acts 1997, No. 261,§ 1, eff. Jan. 1, 1998.


EXERCISE: MANDATARIES

1. Look at the Louisiana statute on mandataries (power of attorneys) and explain in your own

words the following:

1. Mandate (See Article 2989)

2. Form (Article 2993)

3. Termination (Article 3024)

4. Principal (Article 2994)

5. Incapacity of principal (Article 3026)


QUIZ: MANDATARIES

1. A mandate (power of attorney) terminates upon the following:

a. Death of the principal or of the power of attorney

b. Interdiction of the power of attorney

c. Qualification of a curator for the principal

d. All of the above

2. All of the following are true for a mandatary (power of attorney), except:

a. A power of attorney must fulfill with prudence and diligence the mandate he has

accepted.

b. He is responsible to the principal for the loss that the principal sustains as a result of the

mandatary’s failure to perform.

c. He or she can transact business after death of the owner of the account.

1.d, 2.c.


REVOCABLE INFORMAL TRUST ACCOUNTS (PAYABLE ON DEATH)

1. Overview An informal trust account is set up evidencing the intention (usually in the signature card contract or deposit agreement) that at the death of the owner, the funds shall belong to the depositor's named beneficiaries. The financial institution may pay the deposit together with the dividends or interest accruing, to the person for whom the deposit was made. The depositor shall give to the depository financial institution an affidavit stating that all designated beneficiaries of such an account are within the required degree of kinship, and the depository financial institution may rely upon the information.

2. Procedures

a. Titling: The accounts must be set up using the terms i. "in trust for" ii. "as trustee for" iii. "payable on death to"

b. Beneficiaries: The beneficiaries must be listed specifically in the deposit records. If an

account is established for more than one beneficiary, the interests of each beneficiary are equal to that of each other depositor unless stated otherwise in the deposit agreement.

c. Multiple Owners: When an account is established for more than one depositor the

interests of each depositor shall be deemed equal to that of each other depositor, unless the financial institution's deposit records indicate otherwise.

3. Insurance

FDIC/NCUSIF covers the owner(s) for $250,000 per qualifying beneficiary(ies).


CHECKLIST FOR REVOCABLE INFORMAL TRUST (POD)

Follow CIP to open account. Make sure account is set up with appropriate titling.

"in trust for";

"as trustee for"

"payable on death to" Check to see that listed beneficiaries are named.

When the account is opened, an authenticated affidavit should

be signed and witnessed. At death, obtain death certificate before paying funds to stated

beneficiary.

IMPORTANT!!! You must have opened the account with this authenticated (notarized) affidavit before you can pay out to the beneficiaries at the death of the account holder and a death certificate.


SAMPLE OF INFORMAL TRUST ACCOUNT AFFIDAVIT

AFFIDAVIT FOR TRUST DEPOSITS PURSUANT TO LOUISIANA REVISED STATUTE 6:314 STATE OF LOUISIANA PARISH OF AVOYELLES BEFORE ME, personally came and appeared: ______________________________________________ Owner of Account of the full age of majority, who, after being duly sworn did depose and say that they were establishing a trust deposit with the intention that upon the death of the depositor that the funds shall belong to: ______________________________________________________ Name ______________________________________________________ Name ______________________________________________________ Name The financial institution shall deliver the funds to the beneficiaries and will not be held liable for any estate, inheritance, or succession taxes which may be due the state, and delivery of the funds shall constitute a full and complete discharge of the financial institution for the payment or delivery so made and shall relieve the financial institution from all adverse claims thereto by a person claiming as a surviving or former spouse or a successor to such a spouse. _______________________________________________________ Signature of Account Owner Date Witness: ___________________________ Witness: ___________________________ SWORN TO AND SUBSCRIBED BEFORE ME ON THIS _____ DAY OF _______, 2010. _________________________________ Notary Public


LAW: R. S. 6:314 TRUST DEPOSITS; DEATH OF DEPOSITOR, PAYMENT

Bank Version

R. S. 6:314 Trust Deposits; death of depositor, payment

A. Upon the death of a depositor who has deposited a sum in any bank account evidencing an intention that upon the death of the depositor, the funds shall belong to one or more named beneficiaries of the depositor, the bank may pay the deposit, together with the dividends or interest accruing thereto, to the named beneficiaries for whom the deposit was made. The depositor shall give to the depository bank an affidavit in authentic form stating the names of one or more beneficiaries. The bank may conclusively rely on this affidavit for the disbursal of funds. Upon receiving a death certificate, the bank may disburse funds to the named beneficiaries.

B. The title of such an account must include the terms "in trust for", "as trustee for", or "payable on death to", such beneficiary or beneficiaries. Such beneficiaries must be specifically named in the deposit account records of the bank.

C. Repealed by Acts 2009, No. 499, §2.

D.(1) When an account described in Subsection A of this Section is established by more than one depositor, the respective interests of each depositor shall be deemed equal to that of each other depositor, unless otherwise stated in the bank's deposit account records.

(2) When an account described in Subsection A of this Section is established for more than one beneficiary, the respective interests of each shall be deemed equal to that of each other beneficiary, unless otherwise stated in the bank's deposit account records.

E. No bank paying a beneficiary in accordance with this Section shall be liable to the estate or any heir of the decedent nor shall the account holder be liable for any estate, inheritance, or succession taxes which may be due the state, and delivery of the funds shall constitute a full and complete discharge of the bank for the payment or delivery so made and shall relieve the bank from all adverse claims thereto by a person claiming as a surviving or former spouse or a successor to such a spouse. No tax collector,

creditor, heir, legatee, personal representative, or any other person shall have any right or cause of action against the financial institution on account of such payment, and R.S. 47:2410 shall not apply to such cases.

F. The provisions of this Section shall apply notwithstanding the fact the decedent designates a beneficiary by last will and testament. The provisions of this Section shall not prohibit any right of forced heirship or the collation or collection of funds due any spouse, heir, legatee, creditor, or other person having rights or claims to funds of the deceased depositor.

Acts 1984, No. 719, §1, eff. Jan. 1, 1985; Acts 1991, No. 535, §1; Acts 1999, No. 633, §1, eff. July 1, 1999; Acts 2009, No. 499, §§1 and 2.

Credit Union Version

§6:653.1. Trust deposits; death of depositor, payment

A. Upon the death of a member who has deposited a sum in any federal or state credit union account evidencing an intention that upon the death of the member, the funds shall belong to the named beneficiary or beneficiaries of the member, the federal or state credit union may pay the share account, together with the dividends or interest accruing thereto, to the named beneficiaries for whom the deposit was made, and the federal or state credit union may rely conclusively thereon. The member shall, at the time such share account is established, give to the federal or state credit union an affidavit in authentic form stating the names of one or more beneficiaries. The credit union may conclusively rely on this affidavit for the disbursal of funds. Upon receiving a death certificate, the credit union may disburse funds to the named beneficiaries.

B. The title of such a share account must include the terms "in trust for", "as trustee for", or "payable on death to", such beneficiary or beneficiaries. Such beneficiaries must be specifically named in the share account records of the federal or state credit union.

C. Repealed by Acts 2009, No. 499, §2.


D.(1) When a share account described in Subsection A of this Section is established by more than one member, the respective interests of each member shall be deemed equal to that of each other member, unless otherwise stated in the federal or state credit union's share account records.

(2) When a share account described in Subsection A of this Section is established for more than one beneficiary, the respective interests of each shall be deemed equal to that of each other beneficiary, unless otherwise stated in the federal or state credit union share account records.

E. No federal or state credit union paying a beneficiary in accordance with this Section shall be liable to the estate or any heir of the decedent nor

shall the share account holder be liable for any estate, inheritance, or succession taxes which may be due the state, and delivery of the funds shall constitute a full and complete discharge of the federal or state credit union for the payment or delivery so made and shall relieve the federal or state credit union from all adverse claims thereto by a person claiming as a surviving or former spouse or a successor to such a spouse.

F. The provisions of this Section shall apply notwithstanding the fact the decedent designates a beneficiary by last will and testament.

Acts 1991, No. 535, §1; Acts 2001, No. 887, §1, eff. June 26, 2001; Acts 2009, No. 499, §§1 and 2.

Successions 40 | P a g e © Gettechnical Inc. 2013

LAW: AUTHENTIC ACT

CIVIL CODE

Art. 1833. Authentic act

A. An authentic act is a writing executed before a

notary public or other officer authorized to perform

that function, in the presence of two witnesses, and

signed by each party who executed it, by each

witness, and by each notary public before whom it

was executed. The typed or hand-printed name of

each person shall be placed in a legible form

immediately beneath the signature of each person

signing the act.

B. To be an authentic act, the writing need not be

executed at one time or place, or before the same

notary public or in the presence of the same

witnesses, provided that each party who executes it

does so before a notary public or other officer

authorized to perform that function, and in the

presence of two witnesses and each party, each

witness, and each notary public signs it. The failure

to include the typed or hand-printed name of each

person signing the act shall not affect the validity or

authenticity of the act.

C. If a party is unable or does not know how to sign

his name, the notary public must cause him to affix

his mark to the writing.

Acts 1984, No. 331, §1, eff. Jan. 1, 1985; Acts 2003,

No. 965, §1, eff. Jan. 1, 2005.


EXERCISE: TRUST DEPOSITS; DEATH OF DEPOSITOR; PAYMENT

1. Look at R.S 6:314 and answer the following:

a) What does the statute say in section A about who can be a beneficiary

b) What does the statute say about “titling” in Section B

c) What does the statute say about liability in Section E


QUIZ: INFORMAL TRUST ACCOUNTS

1. Renee Fontenot wants to open an informal trust account. She does not want the words

"payable on death" to appear on her statement and requests that this not be a part of the title

of the account. What can the financial institution do?

a. A POD must be on the signature card contract, but it does not have to appear in your

computer. It may be that your financial institution can style the account Renee

Fontenot, POD without listing the beneficiaries;

b. Tell her you cannot help her

c. Tell her that your supervisor would be mad

2. Mary Theriot is single and wants to set up an account styled "Mary POD Niece". Will this be a

binding trust in Louisiana?

a. Yes

b. No

3. Jerry and Christy want to set up a joint account with their three children as the POD

beneficiaries. What will happen when one of the original owners dies? Who will get the

$90,000 in the account?

a. Joint accounts are not clearly defined in the Louisiana statute

b. Usually the signature card determines what will happen between joint owners on a

payable on death account

c. If the contract is silent, it goes half to the other joint owner and half to the kids

d. A and B only

e. A, B and C

4. What if one of the children is deceased? Who will receive the funds?

a. It is split between the two and the other’s estate

b. It is only split between the two remaining

5. Jerry and Christy wish to set up a joint account with three children as their beneficiaries. One

of those children is adopted, one child is Christy’s from a prior marriage and one is theirs

together. May the financial institution set up a POD account for these children?

a. Yes

b. No


6. What if a customer comes in with a will which is contrary to the POD designation on the

contract? Who should the financial institution pay the funds to?

a. Absent a court order we pay according to contract

b. We pay according to the will

7. If an account was set up "Jerry or Christy POD Child 1, 2, and 3", how much is the account

insured for under FDIC/NCUSIF? If Christy dies, does the insurance change?

a. Insured for $1.5 million and decreases to $750,000 at her death.

b. Insured for $600,000 and decreases to $300,000 at her death.

1. a, 2.a, 3.e, 4.b, 5.a, 6.a, 7.a


TRANSFER OF SMALL DEPOSITS—R. S. 6:315.1 ($5,000 OR LESS IN DEPOSITS)

1. Definition (Banking Statute)

If a depositor dies intestate (without a will) and has deposits of $5,000 or less standing in his/her name

alone or jointly with a surviving spouse, the financial institution may transfer the deposits to the surviving

spouse and heirs, or just to heirs if there is no surviving spouse, upon receipt of an affidavit.

2. Requirements

a. Identification: Acceptable identification of spouse or heirs.

b. Affidavit: The affidavit must: (See Appendix)

i. Establish the relationship of the spouse and heirs.

ii. State that the decedent left no will.

iii. State that the total aggregate amount on deposit at any institution is $5,000 or

less.

iv. State that the facts are true and correct.

c. Proof of Death: Death Certificate

3. Action

Upon receipt of the affidavit and proper identification of the spouse and heirs, the financial institution may

transfer the funds to the beneficiary.

Remember this only works if the check is made payable to the spouse and heirs. It can be made

payable to spouse alone if there are no children. Or, to children alone if no spouse. This is a banking

statute. Credit unions have a provision in their spousal affidavit law so if no spouse then can pay

nonspouse up to $10,000.


CHECKLIST FOR SMALL DEPOSIT PAYOUT

Death Certificate.

Acceptable Identification of the spouse and heir(s).

o (Attach copies)

Affidavit.

Establishes relationship.

States that there was no will.

States that the aggregate amount on deposit is $5,000 or

less.

States that the facts are true and correct.

Release of funds.

o (Attach copy of check)

o Check must be made payable to spouse and heirs.


LAW: R. S. 6.315.1 TRANSFER OF SMALL DEPOSITS; DEATH OF DEPOSITOR; AFFIDAVITS

REQUIRED; PENALTIES

R. S. 6:315.1. Transfer of small deposits; death of

depositor; affidavit 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 the total aggregate amount of five thousand

dollars or less, in any depository financial institution,

such depository financial institution may transfer such

deposits to the surviving spouse and heirs, if any, in

the total aggregate amount of five thousand dollars or

less, in any depository financial institution, such

depository financial institution may transfer 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

aggregate amount on deposit subject to transfer

under this Section does not exceed five thousand

dollars, 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 required above.

C. Receipt by the depository financial

institution of the affidavit required in Subsection A

shall be a full release and discharge of the bank 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 bank be liable for any estate, inheritance, or

succession taxes which may be due 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


REVIEW QUESTIONS WORKSHEET

Components for transfers of small deposits --$5,000 or less

$5,000 or less total No Will Spouse and heirs, if any

Case #1 Bud Wilson owns a small house and has a checking account at ABC Financial Institution in the amount of $5,100. At the time of his death, he had a wife and son who are his only heirs. Yes or No?

Case #2 Mark LeBlanc owns a small home and also has a wife as his only heir. He has $3,000 at XYZ Financial Institution and $1,000 at ABC Financial Institution. He had no will.

Yes or No?

Case #3 Dwight Cooper has $900 in his checking account at 123 Financial Institution and he has left everything to his wife in his will. Yes or No?

Case #4 Lisa Fremin has $1,000 at One Financial Institution and $1,000 at Two Financial Institution. She has a husband and one daughter to survive her and no will. Yes or No?

Case #5 Kim Boudreaux has two sons and no will. She was not married at her death. She had $4,500 in her financial institution in Lafayette. Yes or No?

Answers from previous page: 1. No, 2.Yes, 3. No, 4. Yes, 5. Yes


EXERCISE: TRANSFER OF SMALL DEPOSITS

Look at R. S. 6:315 Transfer of Small Deposits

1. What is the amount of a small deposit?

2. Who does the statute say it can be transferred to?

3. What does the statute say must be in the affidavit?

4. Go to your appendix in the handout and find a sample of a transfer of a small deposit

affidavit and read it.


SURVIVING SPOUSE ACCESS TO DECEDENT’S ACCOUNTS

1. Overview Any bank or other depository may pay to the surviving spouse $10,000 out of the deposits of a decedent or out of deposits of the community between the survivor and the decedent, deposited in the name of decedent or of the survivor or in the name of the decedent jointly with the survivor or otherwise, without any court proceedings, order or judgment authorizing the same or determining whether or not an inheritance tax is due. 2. Procedures

a. Affidavit (Sample in Appendix). b. The surviving spouse shall give to the paying depository an affidavit that the total funds

withdrawn do not exceed ten thousand dollars from all depositories (Sample in manual). c. Copy of Death Certificate of decedent. d. Acceptable identification of spouse. e. Not reported to tax collector.

3. Comments

a. The financial institution has discretion when application to withdraw funds is made under this law. This law is permissive and not mandatory. When there is a controversy with an executor the financial institution does not have to pay to the surviving spouse.

b. The spouse can use these funds for (but is not limited to this) continuing community affairs, matters of businesses; meeting needs of surviving spouse and other dependents of decedent and defraying expenses of last illness, funeral expenses and other reasonable and legitimate claims, demands or expenses.

c. The funds paid out to the surviving spouse still form a part of the decedent's succession.


SAMPLE OF AN AFFIDAVIT

RELEASE OF FUNDS TO SURVIVING SPOUSE FROM DECEDENT'S ACCOUNTS STATE OF LOUISIANA PARISH NAME Be it known that on this_________ day of ___________, 20____ before me, the under signed authority, a Notary Public in and for the aforesaid Parish and State, personally came and appeared ____________________, to me personally known, who declared: That (s)he is the surviving widow or surviving husband of _________________________________ and that since the death of the aforesaid deceased (s)he has not withdrawn funds in excess of $10,000 from all or any other depositories in which the decedent has funds from any other or all other depositories the total amount does not exceed $10,000, in accordance with LA. R. S. 9:1513. That (s)he has this date received from such funds on deposit with (Financial Institution Name and Address), the sum of ____________________________________________________________________________($ ). _____________________________________ Sworn to and subscribed before me this_____ day of ____________________ 20 ____. _____________________________________ Notary Public in and for (Parish Name), Louisiana Office ________________________ Signature_________________________


LAW: R. S. 9:1513 PAYMENT TO SURVIVING SPOUSE WITHOUT COURT PROCEEDINGS

Bank Version

R. S. 9:1513. Payment to surviving spouse without

court proceedings

A. Any bank or other depository may pay to the

surviving spouse of a depositor a sum not to exceed

ten thousand dollars out of the deposits of a

decedent or out of deposits of the community

between the survivor and the decedent, deposited in

the name of the decedent or of the survivor or in the

name of the decedent jointly with the survivor or

otherwise, without any court proceedings, order or

judgment authorizing the same or determining

whether or not an inheritance tax is due. The

surviving spouse shall give to the paying depository an

affidavit that the total funds withdrawn do not exceed

ten thousand dollars from all depositories.

B. In the event of such payment, the receipt of the

surviving spouse to whom it is made is a full release

and discharge of the payor bank or other depository

for the amount paid and for any inheritance tax

determined to be due, and no tax collector, creditor,

heir, personal representative, or any other person

shall have any right or cause of action against any

bank or other depository on account of the payment.

C. Notwithstanding the provisions of this Section or

any other provision of law, the provisions of R.S. 6:312

shall establish the exclusive method of payment of

funds from an alternative account.

Added by Acts 1952, No. 539,§ 1. Amended by Acts

1956, No. 559,§ 1; Acts 1958, No. 126,§ 1; Acts 1964,

No. 194,§ 2; Acts 1966, No. 235,§ 2; Acts 1974, No.

20,§ 1; Acts 1976, No. 316,§ 1; Acts 1978, No. 153,§

1; Acts 1984, No. 54,§ 1; Acts 1995, No. 1143,§ 2.


Credit Union Version

R.S. 9:§1514. Credit unions; payment to

surviving spouse without court proceedings

A.(1) Any credit union in Louisiana may pay to the

surviving spouse the value of any shares standing in

the name of the decedent in the credit union not in

excess of ten thousand dollars without any court

proceedings, order or judgment authorizing the

same and without determining whether the shares

belong to the separate estate of decedent or to the

community which existed between the decedent

and the surviving spouse. The surviving spouse shall

give to the paying depository an affidavit that the

total funds withdrawn do not exceed ten thousand

dollars from all depositories.

(2) The receipt of the surviving spouse for the

payment shall constitute a full release and discharge

of the credit union for the amount paid. No person,

natural or juridical, shall have any right or cause of

action against a credit union because of the

payment.

(3) In the event such deceased member of the credit

union leaves no surviving spouse, the credit union

may pay the balance in the deceased member's

share account to the major children of the deceased

upon presentment of an affidavit that the total funds

withdrawn do not exceed ten thousand dollars from

all depositories.

(4) The receipt of a major child of the deceased

member for the payment shall constitute a full

release and discharge of the credit union for the

amount paid. No person, natural or juridical, shall

have any right or cause of action against a credit

union because of the payment.

B.(1) Any credit union may pay to the surviving

spouse of a depositor a sum not to exceed ten

thousand dollars out of the deposits of a decedent

or out of deposits of the community between the

survivor and the decedent, deposited in the name of

decedent or of the survivor or in the name of the

decedent jointly with the survivor or otherwise,

without any court proceedings, order or judgment

authorizing the same. The surviving spouse shall

give the paying depository an affidavit that the total

funds withdrawn do not exceed ten thousand dollars

from all depositories.

(2) The receipt of the surviving spouse to whom

payment is made is a full release and discharge of

the payor credit union for the amount paid, and no

tax collector, creditor, heir, personal representative,

or any other person shall have any right or cause of

action against any credit union on account of the

payment.

C. Notwithstanding the provisions of this Section or

any other provision of law, the provisions of R.S.

6:664 shall establish the exclusive method for

payment of funds from a multiple party account.

Acts 1964, No. 166, §1. Amended by Acts 1966, No.

235, §2; Acts 1974, No. 20, §1; Acts 1978, No. 153,

§1; Acts 1984, No. 54, §1; Acts 1995, No. 293, §2;

Acts 2010, No. 175, §2.


EXERCISE: PAYMENT TO SURVIVING SPOUSE WITHOUT COURT PROCEEDINGS

Read R.S. 9:1513 and answer the following:

1. What is the amount we can transfer to a spouse?

2. What does section B say about our liability?


QUIZ: SURVIVING SPOUSE

1. Does the financial institution have to honor a surviving spouse affidavit?

a. Yes

b. No

2. Keith and Julie have a joint account titled "Keith or Julie". This account’s value is $50,000. Can

Keith’s wife, at his death, use the affidavit to get to $10,000?

a. Yes but as joint owner does not need affidavit

b. No

3. Bob had an account titled "Bob dba Smith’s Plumbing” with $10,000 in the account. Can she

take it out?

a. Yes

b. No

4. Joseph and Lori Dupuis have a joint account with $20,000 in the account. Lori also has a

individual account with $10,000. At her death, how can Joseph get access to all of these funds?

a. He can get into joint account already and can use affidavit for the $10,000.

b. Everything freezes at death

1. b, 2.a, 3.a, 4.a


SMALL SUCCESSIONS—NO WILL—ESTATE $75,000 OR LESS WITH HEIRS

1. Definition

A Small Succession exists in Louisiana when a person dies intestate, whose sole heirs are his

descendants, ascendants, brothers or sisters, or descendants thereof, or surviving spouse and

whose gross assets are $75,000 or less. This type of succession requires no judicial opening.

2. Requirements

a. Acceptable Identification: Heirs.

b. Affidavit of death and heirship: (Sample in Appendix)

Must contain the following (see Article 3432 below):

(1) The date of death of the deceased, and his domicile at the time thereof;

(2) The fact that the deceased died intestate;

(3) The marital status of the deceased, the location of the last residence of the deceased,

and the name of the surviving spouse, if any, and the surviving spouse's address, domicile,

and location of last residence;

(4) The names and last known addresses of the heirs of the deceased, their relationship to

the deceased, and the statement that an heir not signing the affidavit (a) cannot be located

after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of

the affiants' intent to execute an affidavit for small succession and did not object;

(5) A description of the property left by the deceased, including whether the property is

community or separate, and which in the case of immovable property must be sufficient to

identify the property for purposes of transfer;

(6) A showing of the value of each item of property, and the aggregate value of all such

property, at the time of the death of the deceased;

(7) A statement describing the respective interests in the property which each heir has

inherited and whether a legal usufruct of the surviving spouse attaches to the property;

(8) An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the

succession of the deceased; and

(9) An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury

that the information contained in the affidavit is true, correct and complete to the best of

their knowledge, information, and belief.

c. Proof of Death: Death Certificate.


SMALL SUCCESSIONS—NO WILL-ESTATE $75,000 OR LESS WITHOUT HEIRS

1. Definition

A Small Succession is defined in Louisiana statutes as “the succession or the ancillary succession of a person who at any time has died leaving property in Louisiana having a gross value of seventy-five thousand dollars or less valued as of the date of death or, if the date of death occurred at least twenty-five years prior to the date of filing of a small succession affidavit as authorized in this Title, leaving property in Louisiana of any value.” This type of succession requires no judicial opening other than filing in the parish clerk’s office.

If there are no heirs, any person appointed as a public administrator by the governor may use the affidavit procedure of this Chapter to take possession of the estate of the deceased for transmittal to the state provided there is no surviving spouse or other heir present or represented in the state and provided that the estate does not include any immovable property, other than small succession immovable property, and provided he has advertised one time in the official journal of the parish where a succession would have been opened under Article 2811, and verifies that he has received no notice of opposition.

2. Requirements

a. Acceptable Identification: Heirs. b. Affidavit of death and heirship: (Sample in Appendix)

Must contain the following (see Article 3432 below):

(1) The date of death of the deceased, and his domicile at the time thereof; (2) The fact that the deceased died intestate; (3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse's address, domicile, and location of last residence; (4) The names and last known addresses of the heirs of the deceased, their relationship to the deceased, and the statement that an heir not signing the affidavit (a) cannot be located after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of the affiants' intent to execute an affidavit for small succession and did not object; (5) A description of the property left by the deceased, including whether the property is community or separate, and which in the case of immovable property must be sufficient to identify the property for purposes of transfer; (6) A showing of the value of each item of property, and the aggregate value of all such property, at the time of the death of the deceased; (7) A statement describing the respective interests in the property which each heir has inherited and whether a legal usufruct of the surviving spouse attaches to the property; (8) An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased; and (9) An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct and complete to the best of their knowledge, information, and belief.

c. Proof of Death: Death Certificate.

d. Notice in official journal.


CHECKLIST FOR HANDLING A SMALL SUCCESSIONS ($75,000)

Checklist for Handling a Small Succession ($75,000)

Death Certificate.

Acceptable Identification of the Surviving Spouse/Heirs/Public Administrator. (Attach copies)

Original Affidavit.

date of death of the deceased

deceased domicile

states deceased died intestate

states the marital status of the deceased, the location of the last residence of the deceased,

and the name of the surviving spouse, if any, and the surviving spouse's address, domicile,

and location of last residence;

states the names and last known addresses of the heirs of the deceased, their relationship to

the deceased, and the statement that an heir not signing the affidavit (a) cannot be located

after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of the

affiants' intent to execute an affidavit for small succession and did not object;

A description of the property left by the deceased, including whether the property is

community or separate, and which in the case of immovable property must be sufficient to

identify the property for purposes of transfer;

A showing of the value of each item of property, and the aggregate value of all such property,

at the time of the death of the deceased

A statement describing the respective interests in the property which each heir has inherited

and whether a legal usufruct of the surviving spouse attaches to the property;

An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the

succession of the deceased; and

An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that

the information contained in the affidavit is true, correct and complete to the best of their

knowledge, information, and belief.

Signature: If the deceased had no surviving spouse, the affidavit must be signed by at least

two heirs. If the deceased had no surviving spouse and only one heir, the affidavit must also

be signed by a second person who has actual knowledge of the matters stated therein.

In addition to the powers of a natural tutor otherwise provided by law, a natural tutor may

also execute the affidavit on behalf of a minor child without the necessity of filing a petition

pursuant to Article 4061.

A multiple original of the affidavit, to which has been attached a certified copy of the

deceased's death certificate, shall be recorded in the conveyance records in the office of the

clerk of court in the parish where any immovable property described therein is situated,

after at least ninety days have elapsed from the date of the deceased's death.

Copy of legal notice (Art 3431.B and C Code Civil Procedure).

(Only applies if no heirs and dealing with Public Administrator.)

Release of funds. (Attach copy of check.)


LAW: SMALL SUCCESSIONS—CODE OF CIVIL PROCEDURE

TITLE V SMALL SUCCESSIONS

CHAPTER 1. GENERAL DISPOSITIONS

Art. 3421. Small successions defined

A small succession, within the meaning of this Title, is the succession or the ancillary succession of a person who at any time has died leaving property in Louisiana having a gross value of seventy-five thousand dollars or less valued as of the date of death or, if the date of death occurred at least twenty-five years prior to the date of filing of a small succession affidavit as authorized in this Title, leaving property in Louisiana of any value.

Amended by Acts 1976, No. 187, §1, eff. Jan. 1, 1977; Acts 1979, No. 71, §1, eff. Jan. 1, 1980; Acts 1980, No. 582, §1; Acts 2009, No. 81, §1, eff. June 18, 2009; Acts 2011, No. 323, §1, eff. June 29, 2011; Acts 2012, No. 618, §1, eff. June 7, 2012.

Art. 3422. Court Costs

In judicial proceedings under this Title, the following schedule of costs, commissions, and fees shall prevail: (1) Court costs shall be one-half the court costs in similar proceedings in larger successions, but the minimum costs in any case shall be five dollars: and (2) The commission of the succession representative shall be not more than five percent of the gross assets of the succession.

Art. 3422.1. Small succession immovable property damaged by disaster or catastrophe A. The provisions of this Article shall apply to immovable property, subject to a small succession proceeding, that is damaged by a disaster or catastrophe for which a declaration of emergency or federal declaration of disaster or emergency was issued.

B. In the absence of a written agreement between co-owners for the use and management of such immovable recorded in the mortgage records for the parish in which the immovable is situated, any public entity or agent of such entity may conclusively presume that a co-owner in possession of the immovable for more than one year has been appointed by all co-owners to manage, administer, repair, reconstruct, and restore the immovable, and to receive, disburse and account for funds given to him by the public entity solely for the purposes of such repair, reconstruction, and restoration. C. The power of the managing co-owner shall include the power to execute mortgages to secure funds not exceeding the amount necessary to repair, reconstruct, and restore the immovable, and also to encumber the immovable with such restrictions as may be required by the public entity, without the need to obtain the concurrence of all co-owners. D. Possession of the immovable by the managing co-owner shall continue during any period the managing co-owner has been forced to leave the immovable due to fire, hurricane, flood, or other disaster or catastrophe. E. The management of the immovable by the co-owner shall be subject to the laws of negotiorum gestio and mandate applicable to co-owners. However, the provisions of this Article shall control to the extent of any conflict. F. It is the intent of the legislature that the provisions of this Article be liberally construed to allow the maximum possible repair, reconstruction, and restoration of immovable property in this state, subject to a small succession proceeding, that has been damaged by disaster or catastrophe. G. Repealed by Acts 2012, No. 618, §2, eff. June 7, 2012. Acts 2011, No. 323, §1, eff. June 29, 2011; Acts 2012, No. 618, §2, eff. June 7, 2012.

CHAPTER 2. WHEN JUDICIAL PROCEEDINGS UNNECESSARY

Art. 3431. Small successions; judicial opening unnecessary


A. It shall not be necessary to open judicially the small succession of a person domiciled in Louisiana who died intestate, or domiciled outside of Louisiana who died intestate or whose testament has been probated by court order of another state, and whose sole heirs are the following: (1) His descendants. (2) His ascendants. (3) His brothers or sisters, or descendants thereof. (4) His surviving spouse. (5) His legatees under a testament probated by court order of another state. B. Any person appointed as public administrator by the governor may use the affidavit procedure of this Chapter to take possession of the estate of the deceased for transmittal to the state provided there is no surviving spouse or other heir present or represented in the state, and provided he has advertised one time in the official journal of the parish where a succession would have been opened under Article 2811, and verifies that he has received no notice of opposition. C. The legal notice required in Paragraph B of this Article shall read as follows: "Notice is hereby given to any heirs or creditors of __________ that _________, Public Administrator for the parish of _______________, intends to administer the intestate succession of __________________, under the provisions of Small Successions as set forth in Chapter 2 of Title V of Book VI of the Code of Civil Procedure. Anyone having an objection to such administration of the succession should notify ________________ at _________________________________." D. Repealed by Acts 2011, No. 323, §2, eff. June 29, 2011. Amended by Acts 1984, No. 623, §1, eff. July 12, 1984; Acts 1990, No. 701, §1; Acts 1995, No. 111, §1; Acts 2006, No. 257, §1, eff. June 8, 2006; Acts 2009, No. 81, §1, eff. June 18, 2009; Acts 2011, No. 323, §§1, 2, eff. June 29, 2011; Acts 2012, No. 618, §1, eff. June 7, 2012.

Art. 3432. Affidavit for small succession; contents A. When it is not necessary under the provisions of Article 3431 to open judicially a small succession, at least two persons, including the surviving spouse, if any, and one or more competent major heirs of the deceased, may execute one or more multiple originals of an affidavit, duly sworn before any officer or person authorized to administer oaths in

the place where the affidavit is executed, setting forth: (1) The date of death of the deceased, and his domicile at the time thereof; (2) The fact that the deceased died intestate; (3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse's address, domicile, and location of last residence; (4) The names and last known addresses of the heirs of the deceased, their relationship to the deceased, and the statement that an heir not signing the affidavit (a) cannot be located after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of the affiants' intent to execute an affidavit for small succession and did not object; (5) A description of the property left by the deceased, including whether the property is community or separate, and which in the case of immovable property must be sufficient to identify the property for purposes of transfer; (6) A showing of the value of each item of property, and the aggregate value of all such property, at the time of the death of the deceased; (7) A statement describing the respective interests in the property which each heir has inherited and whether a legal usufruct of the surviving spouse attaches to the property; (8) An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased; and (9) An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct and complete to the best of their knowledge, information, and belief. (10) Repealed by Acts 2012, No. 618, §2, eff. June 7, 2012. B. If the deceased had no surviving spouse, the affidavit must be signed by at least two heirs. If the deceased had no surviving spouse and only one heir, the affidavit must also be signed by a second person who has actual knowledge of the matters stated therein. C. In addition to the powers of a natural tutor otherwise provided by law, a natural tutor may also execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061. Amended by Acts 1974, No. 524, §1; Acts 2009, No. 81, §1, eff. June 18, 2009; Acts 2011, No. 323, §1,


eff. June 29, 2011; Acts 2012, No. 618, §§1, 2, eff. June 7, 2012.

Art. 3432.1. Affidavit for small succession for a person domiciled outside of Louisiana who died testate; contents (Note: New statute) A. When it is not necessary under the provisions of Article 3431 to open judicially a small succession, at least two persons, including the surviving spouse, if any, and one or more competent legatees of the deceased, may execute one or more multiple originals of an affidavit, duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed, setting forth all of the following: (1) The date of death of the deceased, and his domicile at the time thereof. (2) The fact that the deceased died testate. (3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse's address, domicile, and location of last residence, together with the names and last known addresses of the legal heirs of the deceased, and identifying those of the legal heirs who are also forced heirs of the deceased. (4) The names and last known addresses of the legatees of the deceased, and the statement that a legatee not signing the affidavit was given ten days notice by U.S. mail of the affiants' intent to execute an affidavit for small succession and did not object. (5) A description of the property left by the deceased, including whether the property is community or separate, and which, in the case of immovable property, must be sufficient to identify the property for purposes of transfer. (6) A showing of the value of each item of property subject to the jurisdiction of the courts of Louisiana, and the aggregate value of all such property, at the time of the death of the deceased. (7) A statement describing the respective interests in the property which each legatee has inherited and whether a legal usufruct of the surviving spouse attaches to the property. (8) An attachment consisting of certified copies of the testament and the probate order of another state. (9) An affirmation that, by signing the affidavit, the affiant, if a legatee, has accepted the legacy of the deceased.

(10) An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct, and complete to the best of their knowledge, information, and belief. B. If the deceased had no surviving spouse, the affidavit must be signed by at least two persons who have actual knowledge of the matters stated therein. C. In addition to the powers of a natural tutor otherwise provided by law, a natural tutor may also execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061. Acts 2012, No. 618, §1, eff. June 7, 2012.

§3433. Repealed by Acts 2009, No. 81, §2, eff. June

18, 2009.

Art. 3434. Endorsed copy of affidavit authority for delivery of property A. A multiple original of the affidavit authorized by Article 3432, shall be full and sufficient authority for the payment or delivery of any money or property of the deceased described in the affidavit to the heirs of the deceased and the surviving spouse in community, if any, in the percentages listed therein, by any bank, financial institution, trust company, warehouseman, or other depositary, or by any person having such property in his possession or under his control. Similarly, a multiple original of an affidavit satisfying the requirements of this Article shall be full and sufficient authority for the transfer to the heirs of the deceased, and surviving spouse in community, if any, or to their assigns, of any stock or registered bonds in the name of the deceased and described in the affidavit, by any domestic or foreign corporation. B. The receipt of the persons named in the affidavit as heirs of the deceased, or surviving spouse in community thereof, constitutes a full release and discharge for the payment of money or delivery of property made under the provisions of this Article. Any creditor, heir, succession representative, or other person whatsoever shall have no right or cause of action against the person paying the money, or delivering the property, or transferring the stock or bonds, under the provisions of this Article, on account of such payment, delivery, or transfer.


C.(1) A multiple original of the affidavit, to which has been attached a certified copy of the deceased's death certificate, shall be recorded in the conveyance records in the office of the clerk of court in the parish where any immovable property described therein is situated, after at least ninety days have elapsed from the date of the deceased's death. (emphasis added) (2) An affidavit so recorded, or a certified copy thereof, shall be admissible as evidence in any action involving immovable property to which it relates or is affected by the instrument, and shall be prima facie evidence of the facts stated therein, including the relationship to the deceased of the parties recognized as heir, surviving spouse in community or usufructuary as the case may be, and of their rights in the immovable property of the deceased. (3) An action by a person, who claims to be a successor of a deceased person but who has not been recognized as such in an affidavit authorized by Article 3432, to assert an interest in property formerly owned by the deceased, against a third person who has acquired an interest in the property, or against his successors by onerous title, is prescribed two years from the date of the recording of the affidavit in accordance with this Paragraph. Amended by Acts 1974, No. 524, §1; Acts 2009, No. 81, §1, eff. June 18, 2009; Acts 2011, No. 323, §1, eff. June 29, 2011.

CHAPTER 3. JUDICIAL PROCEEDINGS Art. 3441. Acceptance without administration; procedure Except as otherwise provided by law, all of the rules applicable to the judicial opening of a succession,

and its acceptance by the heirs or legatees without an administration, apply to the small succession.

Art. 3442. Administration of successions; procedure Except as otherwise provided by law, all of the rules applicable to the judicial opening of a succession, its administration, and sending the heirs or legatees into possession on its termination apply to the small succession.

Art. 3443. Sale of succession property; publication of notice of sale Notice of the public sale of property, movable or immovable, by the succession representative of a small succession shall be published once and only in the parish where the succession is pending, and the property shall be sold not less than ten days nor more than fifteen days after publication. Notice of the application of the succession representative of a small succession to sell succession property, movable or immovable, at private sale shall be published once and only in the parish where the succession proceeding is pending, and shall state that any opposition to the proposed sale must be filed within ten days of the date of publication.


EXERCISE: SMALL SUCCESSIONS

Read the new Revised Statute on Small Successions and answer the following:

1. Does the affidavit have to be recorded?

2. What does the bill define as a small succession?

3. According to the law, what does the affidavit have to contain?


QUIZ: SMALL SUCCESSIONS

1. A small succession after June 7, 2012 is defined as a succession of a person who dies leaving

property in Louisiana, the deceased’s interest in which has a gross value of 100,000 or less.

a. True

b. False

2. The affidavit of a small succession must be filed at the parish if it involves real estate (immovable

property).

a. True

b. False

3. At least two persons must execute the affidavit, if there is no surviving spouse.

a. True

b. False

1. b, 2.a, 3.a


FORMAL VALID SUCCESSIONS


OVERVIEW OF FORMAL VALID SUCCESSIONS

Formal Succession If you receive:

Letters Testamentary or

Letters of Administration

Judgment of

Possession

Close Decedent’s Accounts

Pay Legatees According

to Judgment

Open Estate Account


CLOSING OUT ACCOUNTS

1. Overview A formal succession is opened when decedent died leaving any type of property and cannot qualify under the Small Succession. The decedent may die with a will (testate) or without a will (intestate), have gross assets over $75,000 (2010) or have immovable property. 2. Procedures a. Get a death certificate. b. List the name of the attorney handling the succession. c. Original Copy of:

Letters Testamentary--with a will; Letters of Administration--without a will; or Judgment of Possession

d. List all accounts in the name of the decedent. e. If possible have your legal counsel review.

f. Issue check payable to succession or heirs depending on what the succession document states.

g. Absolutely no other signers on this account. Do not let anyone but an independent executor or administrator into any accounts and absolutely no one else. See lawsuit in back of manual. Kennedy vs Fagan


CHECKLIST FOR A FORMAL SUCCESSION

Death Certificate.

Name of decedent's attorney:

Phone number:

Original Copy of Letters Testamentary and court order

naming the independent executor or administrator

/Letters of Administration/Judgment of Possession (one of

these three).

List all of the accounts in the name of the decedent.

Review by bank's legal counsel.

Issue check.

File all documents and keep.


OPENING THE ESTATE ACCOUNT—WITH A WILL

1. Overview If the decedent dies with a will, the will is filed at the court house. If an executor/executrix is named in the will he/she will be issued Letters of Testamentary. If an executor is not named in the will then an administrator will be named by the court. The duties of an executor/executrix are to locate all of the property of the decedent; manage it during the period of administration; pay all debts, taxes, and costs of administration; and distribute what is left according to the will or state law.

If the executor has Letters of Testamentary from another state then they must file ancillary proceedings in

the state of Louisiana.

2. Documentation

a. Legal Documents: Letters Testamentary from the court authorizing one or more executors. b. Account Styling: The Succession of Sandra Smith. c. Signer(s): Executor/Executrix. d. TIN: Estate's EIN. e. Acceptable Identification: Executor/Executrix.

4. Insurance All funds belonging to a decedent and invested in one or more accounts, whether held in the name of the decedent or in the name of his executor or administrator are added together and insured to the $250,000 maximum. Such funds are insured separately from the individual accounts of any of the beneficiaries of the estate or of the executor or administrator.


OPENING THE ESTATE ACCOUNT—WITHOUT A WILL

1. Overview

When a person dies in Louisiana without a will state law determines who shall inherit his/her property and

in what proportions the property shall be distributed. These laws also govern the distribution of the

property not disposed of by a decedent's will, either because the will does not cover all of the property or

because it is invalid. An administrator is a court appointed representative.

2. Documentation

a. Legal Documents: Letters of Administration from the court authorizing someone as

administrator.

b. Account Styling: The succession of Sandra Smith.

c. Signer(s): Administrator or Administratrix.

d. Identification: Administrator.

e. TIN: Estate's EIN.

3. Insurance

All funds, belonging to a decedent and invested in one or more accounts, whether held in the name of the

decedent or in the name of his executor or administrator, are added together and insured to the $250,000

maximum. Such funds are insured separately from the individual accounts of any of the beneficiaries of the

estate or of the executor or administrator.


CHECKLIST FOR OPENING A SUCCESSION ACCOUNT

Obtain Original Copy of Letters Testamentary/ Letters

of Administration/Judgment of Possession.

Use the Federal Tax Identification of the Estate.

Acceptable Identification of the Executor/

Administrator.

Title Account.

Signature Card Contract--Executor/Administrator.


EXERCISE: OPENING A SUCCESSION ACCOUNT

1. Go to the Appendix and find sample Letters of Testamentary and Letters of Administration.


QUIZ: OPENING A SUCCESSION ACCOUNT

1. At the establishment of an Estate Account, the administrator can use the following:

a. EIN of estate

b. SSN of decedent

c. Birth date of the decedent

2. The Letters of Testamentary name the Executor or Executrix.

a. True

b. False

3. The Letters of Administration name the Administrator or Administratrix.

a. True

b. False

4. The Estate or Succession is your customer for CIP purposes.

a. True

b. False

1. a, 2.a, 3.a, 4.a


FORMAL VALID SUCCESSIONS—USUFRUCT ACCOUNTS

Description

Some estate attorneys may request that you set up a "Usufruct Account". In this account which would be titled "Mary, Usufruct for John, Naked Owner". Mary would be the decedent's spouse under the Judgment who has the use of the funds, but John (usually a child) is the ultimate owner. Since your signature card does not generally address this type of account. The problems of the type of ownership and FDIC/NCUSIF insurance are just two of the reasons this is a troublesome account. You will want to consult your attorney. It may be better to set this up as an individual account for Mary and then at the occurrence of death or remarriage have the naked owner come back in at that time with the Judgment of Possession.


LAW: C.C. ART. 890 USUFRUCT ACCOUNTS

C.C. Art. 890. Usufruct of surviving spouse

If the deceased spouse is survived by

descendants, the surviving spouse shall have a

usufruct over the decedent’s share of the community

property to the extent that the decedent has not

disposed of it by testament. This usufruct terminates

when the surviving spouse dies or remarries,

whichever occurs first. Acts 1996.

Acts 1981, No. 919,§ 1. Amended by Acts 1982, No.

445,§ 1; Acts 1990, No. 1075,§ 1, eff. July 27, 1990;

Acts 1996, 1st Ex. Sess., No. 77,§ 1.


QUIZ: USUFRUCT ACCOUNTS

1. Which of the following is true?

a. Usufruct is ordered in a Judgment of Possession

b. The spouse has use of funds but the money ultimately belongs to a child

c. Both A and B

2. The following rules apply to a usufruct:

a. The usufruct is only for property not disposed of by testament

b. The usufruct ceased at death or remarriage

c. Both A and B are true

3. The Usufruct terminates at death of surviving spouse and remarriage.

a. True

b. False

1.c, 2.c, 3.a


POWER OF ATTORNEY

1. Non resident succession representative

A nonresident succession representative may execute a power of attorney appointing a resident of the state

to represent him in all acts of his administration.

2. In Case of Absence

A resident succession representative who will be absent from the state temporarily similarly may appoint an

agent to act for him during his absence.

3. Filing

If either one or two above apply, the power of attorney appointing the agent shall be filed in the court

record of the succession proceeding. The bank must get a certified true copy of the Power of Attorney from

the court succession record.


LAW: R. S. 9:1517 CERTAIN SUCCESSION REPRESENTATIVES; POWER OF ATTORNEY

R. S. 9:1517. Certain succession representatives;

power of attorney

Any person confirmed as a testamentary executor, or

appointed dative testamentary executor, provisional

administrator, or administrator of a succession may,

by power of attorney, designate a person to manage

in his stead. The mandatary may substitute another

person to manage in his stead but only if the

procuration empowers him to substitute.

Acts 1985, No. 284,§ 1.


QUIZ: POWER OF ATTORNEY

1. A non-resident succession representative may not appoint a power of attorney who is

appointing a resident of the state to represent him.

a. True

b. False

2. If a resident succession representative is out of state temporarily, he may appoint an agent to

act for him during his absence.

a. True

b. False

3. These power of attorneys shall be filed in the court record of the succession proceeding.

a. True

b. False

1. a, 2.a, 3.a


PAYMENT TO FUNERAL HOMES

Payment to funeral homes without court authorization

It has been practice in Louisiana by some financial institutions to make checks payable to the funeral home

for expenses at the death of the customer. If the estate is insolvent and the financial institution pays out

more that the $500 outlined in the Civil Code, they may be liable to the estate. It would perhaps be worth

consideration to pay the money out to the heirs/legatees in one of the other methods explained throughout

this text instead of directly to the funeral home. Of course if the account is an alternative joint account, the

joint accountholder may make the check out to the funeral home subject to receipt requirements.


LAW: C.C. ARTICLE 3191 SECTION 1 OF GENERAL PRIVILEGES ON MOVABLES

Art. 3191. General privileges on all movables,

enumeration and ranking

The debts which are privileged on all the movables in

general, are those hereafter enumerated, and are

paid in the following order:

1. Funeral charges.

2. Law charges.

3. Charges, of whatever nature, occasioned by

the last sickness, concurrently among those

to whom they are due.

4. The wages of servants for the year past, and

so much as is due for the current year.

5. Supplies of provisions made to the debtor

or his family, during the last six months, by

retail dealers, such as bakers, butchers,

grocers; and, during the last year, by

keepers of boarding houses and taverns.

6. The salaries of clerks, secretaries, and other

persons of that kind

Amended by Acts 1979, No. 711,§ 1.

Section 1. Of Funeral Charges

Art. 3192. Funeral charges, definition

Funeral charges are those which are incurred for the

interment of a person deceased.

Art. 3193. Reduction of funeral charges of in-solvent

decedent

If the property of the deceased is so incumbered as

not to suffice for the payment of his creditors, the

funeral charges may, upon the request of any of

them, be reduced by the judge to a reasonable rate,

regard being had to the station in life which the

deceased held and which his family holds.

Art. 3194.

But, in case of the reduction, the judge can never

allow, at the* expense of the estate on any account

whatever, more than Five Hundred Dollars for all

the* expenses occasioned by the interment of the

deceased.


*English translation of French text incomplete;

should include "funeral."


EXERCISE: PAYMENT TO FUNERAL HOMES

1. In the law, what does Article 3194 say is the amount we can pay to a funeral home?

2. Where does the funeral home take in the list of debts to be paid in Article 3191?


QUIZ: PAYMENT TO FUNERAL HOMES

1. The bank can pay a funeral home directly for up to $500.

a. True

b. False

2. At the death of the purchaser of a funeral home account, the funeral home must give the bank:

a. A death certificate

b. A certified copy of the funeral home bill

c. Both A and B

1.a,


PREPAID FUNERAL SERVICES OR MERCHANDISE

1. Overview

Some of your customers may wish to prepay their funeral expenses. In such cases, all amounts will be

deposited within seven days in savings and loan association or in a savings account in a financial institution,

in this state. Such deposits will be in the individual accounts in the joint name of the seller and purchaser or

in individual trust accounts, for both the exclusive use and benefit of the purchaser. These accounts cannot

be commingled with other funds.

2. At Death of Purchaser

The seller may only withdraw the funds at the death of the purchaser by presentation of a death certificate

copy and a certified funeral statement for the amount to be withdrawn, together with other requirements

of the financial institution.

3. Purchaser Withdrawals

The purchaser may withdraw the funds by written notice to the seller requesting the release of the

depository document held by seller. Additionally, he may by his own request and by written notice to the

seller at any time during the life of the contract, render any amount of the prepaid contract irrevocable.


LAW: PREPAID FUNERAL SERVICES OR MERCHANDISE

REVISED STATUTES TITLE 37 PROFESSIONS AND OCCUPATIONS CHAPTER 10. EMBALMING AND FUNERAL

DIRECTORS PART II. PREPAID FUNERAL SERVICES OR

MERCHANDISE R. S. 37:861 Preneed funeral plans It shall be unlawful for a firm, partnership, corporation, an association of individuals, or anyone to enter into a preneed funeral contract other than a duly licensed funeral establishment. Added by Acts 1974, No. 5, §1. Amended by Acts 1982, No. 592, §1; Acts 1983, No. 454, §1; Acts 2008, No. 799, §1, eff. Jan. 1, 2009. §37:862. Preneed funeral contracts A. The preneed funeral contract shall: (1) Be in writing and printed in not less than ten point typeface. (2) State the name, address and telephone number of the funeral establishment. (3) State the name, address and telephone number of the buyer and the funeral recipient, if the funeral recipient is not the buyer. (4) Contain or be accompanied by a statement of funeral goods and services which meets the requirements of the Federal Trade Commission Funeral Rule, 16 CFR Part 453, and LAC Title 46, Part XXXVII, §111. If a separate statement is used, it shall be attached to the preneed funeral contract and incorporated by reference into that contract. (5) State whether the contract will be funded by a preneed insurance policy or annuity or a funeral trust account. (6) If funded by a preneed insurance policy or annuity, state the name, home office address, and telephone number of the insurance company. A copy of the policy application with any medically related information expurgated shall be attached to and incorporated by reference into the contract and shall include a statement that the amount to be refunded if cancelled prior to the death of the funeral recipient will be determined by the provisions of the preneed insurance policy or annuity and a statement as to who is responsible for paying the income tax on any earnings generated by the preneed insurance policy or annuity.

(7) If funded by a deposit in a funeral trust account, provide the identity of the financial institution in which the money delivered to the funeral establishment by the buyer is to be deposited, and a statement as to who will be responsible for paying the income tax on any earnings generated by the funeral trust account. (8) State the amount of the money initially deposited into a funeral trust account and give a description of any preneed insurance policy or annuity, used to fund the preneed funeral contract. (9) State the effect on the contract benefits resulting from the failure to make any future payments required to fully fund the contract. (10) Recite clearly and conspicuously whether the preneed funeral contract or the funding is revocable or irrevocable. (11) Specifically identify which funeral goods and services are guaranteed funeral goods and services and state when the guarantee becomes effective if other than upon execution of the contract and the term of the guarantee if the term is other than for the life of the funeral recipient. (12) State that the price to be paid for any funeral goods and services not designated as guaranteed will be the prevailing retail prices as listed on the general price list and casket price list of the funeral establishment at the time of the death of the funeral recipient. (13) Include a description of any casket, alternative container or other funeral merchandise, burial vault or urn included in the preneed funeral contract. The description of a casket shall include the exterior color, the material the casket is constructed of, including but not limited to, the type and thickness of metal expressed in gauge or ounces per square foot, type and color of wood or other material and type and color of interior fabric; with respect to an urn, the description shall be of the material of which it is constructed. (14) Contain the signature of the buyer and the date the buyer signed the contract. (15) Contain the signature of a funeral director authorized by the funeral establishment to enter into a preneed funeral contract, and the date signed. (16) Clearly and conspicuously state that unless waived as provided in R.S. 37:864(B), the preneed funeral contract may be cancelled and the buyer


receive a full refund of all monies delivered and a return and cancellation of the assignment of all policies transferred or assigned in connection therewith anytime within ten days after the buyer signed the contract. (17) Include the name, address, and telephone number of any refund designee designated by the buyer. B. Until signed by a funeral director authorized by the funeral establishment, the contract signed by the buyer shall be considered as an offer to purchase. Upon acceptance of the offer, signified by the signature of its duly authorized funeral director, the funeral establishment shall furnish a complete, fully executed copy of the preneed funeral contract to the buyer. Acts 2008, No. 799, §1, eff. Jan. 1, 2009. §37:863. Substitution of guaranteed funeral goods and services If any guaranteed funeral goods or services which were selected by the buyer in a preneed funeral contract are unavailable at the time of the death of the funeral recipient of that contract, the funeral establishment shall offer a similar casket or other funeral goods or services of equal quality, value and workmanship as the unavailable funeral goods or services. Acts 2008, No. 799, §1, eff. Jan. 1, 2009. §37:864. Cancellation of preneed funeral contracts A. Unless waived as provided in Subsection B of this Section, any buyer of a preneed funeral contract may cancel that contract and receive a full refund of all monies connected with that contract at any time within ten days after the buyer signed the contract. After the expiration of this ten day period, a preneed funeral contract may be cancelled as hereinafter provided. B. Where an application by the buyer or funeral recipient for government benefits is pending, the buyer may waive his or her right to cancel the preneed funeral contract as provided in Subsection A of this Section by signing a written waiver of that right. C.(1) If a preneed funeral contract is revocable, the buyer, or his legal representative, may cancel the preneed funeral contract at any time by sending written notice of such cancellation, via certified mail, return receipt requested, to the funeral establishment. (2) If a funeral trust account has been established to fund that preneed funeral contract, the funeral

establishment shall within ten business days after the notice of cancellation is received forward a copy of said notice of cancellation to the financial institution holding on deposit the funeral trust account, and take all necessary steps to ensure that all funds contained in that funeral trust account are refunded to the buyer, less any charge for early withdrawal imposed by the financial institution. (3) If a preneed insurance policy or annuity was purchased or provided to fund a preneed funeral contract, the funeral establishment shall forward a copy of the notice of cancellation of that preneed funeral contract to the insurance company which issued the preneed insurance policy or annuity. D. If a preneed funeral contract is irrevocable during the life of the funeral recipient the contract shall not be revocable by either party nor shall the buyer be entitled to a return of the monies or any preneed insurance policy or annuity delivered to the funeral establishment except by order of a court of competent jurisdiction. E. No funeral establishment shall impose any surcharge, fee, or other penalty, monetary or otherwise, when any person seeks to exercise his right to cancel a preneed funeral contract. Acts 2008, No. 799, §1, eff. Jan. 1, 2009. §37:865. Restriction on use or disposition of funds A. No funeral establishment, or any agent or employee thereof, shall borrow from, convert to another policy or surrender any preneed insurance policy or annuity, nor use or pledge any funds or insurance policy or annuity which is received in connection with any preneed funeral contract for any personal use, payment of funeral goods and services prior to the death of the funeral recipient, payment of the operating expenses of a funeral establishment, issuance of a loan to any person, as collateral for any loan, or for any purpose other than those expressly authorized by that preneed funeral contract and this Section. There shall be no commingling of funeral trust accounts. B. All funds delivered by a buyer to a funeral establishment in connection with any preneed funeral contract shall be either: (1) Deposited in a trust account with a financial institution not later than five business days after the expiration of the ten day right of cancellation period provided in R.S. 37:864(A). Such deposit shall be made in individual accounts or certificates of deposits which name the funeral establishment and the funeral recipient and shall be for the exclusive


use and benefit, including all earned interest, of the funeral recipient. (2) Delivered to an insurance company for the purchase of a preneed insurance policy or annuity not later than five business days after the expiration of the ten day right to cancel period provided in R.S. 37:864(A). C. A funeral establishment shall not be allowed to avoid the requirement of Subsections A and B of this Section by constructive delivery of funeral goods to the buyer, storing the funeral goods in a warehouse or other location, posting of any type surety bond or other security or in any other manner or form. D. Each funeral establishment shall file an annual report of funeral trust accounts with the Louisiana State Board of Embalmers and Funeral Directors as a prerequisite for licensing as a funeral establishment. The report shall list the name of the funeral recipient, contract number, financial institution account number, principal amount, and accumulated interest of each funeral trust account outstanding. This report shall be in the form of a sworn affidavit certifying that the report is true and correct, that all funds received were deposited in a financial institution or delivered to an insurance company as required under Subsection B of this Section and that the funeral establishment has no other funds or deposits for funding prepaid funeral goods and services effective as of the date of the report. All records used to complete the report shall be made available to the board which shall make an inspection of such records at least once annually. E. A funeral establishment shall not have access to or use of any of the funds in connection with a preneed funeral contract for any purpose other than the following: (1) If funded with a funeral trust account: (a) Obtaining payment for providing funeral goods and services, upon presentation of the documents required by Subsection F of this Section. (b) Transferring those funds to another funeral trust account, or to a preneed insurance policy or annuity, upon written authorization to do so from the buyer of the preneed funeral contract, or the duly authorized representative of the buyer. (c) Refunding those funds to the buyer upon receipt of a written notice of cancellation of the preneed funeral contract from the buyer or the duly authorized legal representative thereof, to the extent permitted by R.S. 37:864. (2) If funded with a preneed insurance policy or annuity, obtaining payment for providing funeral

goods and services, upon presentation of the documents required by Subsection F of this Section. F. Before obtaining or receiving payment for funeral goods and services rendered to the funeral recipient of any preneed funeral contract, the funeral establishment shall present a certified copy of the death certificate of the funeral recipient to the financial institution with whom any funeral trust account has been deposited and the insurer of any preneed insurance policy or annuity which was used to fund that preneed funeral contract. G. At the time of the funeral recipient's death, the funds available in any funeral trust account established in connection with that preneed funeral contract or from any preneed insurance policy or annuity purchased or provided in connection with that preneed funeral contract shall be apportioned between the guaranteed funeral goods and services and the nonguaranteed funeral goods and services provided on the statement of goods and services contained in the preneed funeral contract in accordance with the applicable percentage pursuant to Subsection H of this Section. The preneed funeral contract funds shall be allocated as follows: (1) With respect to guaranteed funeral goods and services, if the amount of apportioned funds to be applied to the costs of the guaranteed funeral goods and services provided by the funeral establishment exceeds the current retail price of those guaranteed funeral goods and services at the time of the funeral recipient's death, the licensed funeral establishment may retain the resulting surplus funds unless the preneed funeral contract provides otherwise. If the amount of the apportioned funds to be applied to the current retail price of those guaranteed funeral goods and services provided by the funeral establishment is not sufficient to cover the current retail price of those funeral goods and services at the time of the funeral recipient's death, the funeral establishment shall bear the resulting loss and shall not bill the estate of the funeral recipient or any other person for the deficiency. (2) With respect to funeral goods and services which are not guaranteed, if the amount of the apportioned funds to be applied to the cost of those funeral goods and services exceeds the current retail price of such funeral goods and services at the time of the funeral recipient's death, the licensed funeral establishment shall refund the resulting surplus to the refund designee or, if none has been designated in the contract or the refund designee predeceased the funeral recipient, to the estate of the funeral recipient. If the amount of the apportioned funds to


be applied to the current retail price of those funeral goods and services provided by the funeral establishment which are not guaranteed are not sufficient to cover the current retail price of those funeral goods and services at the time of the funeral recipient's death, the funeral establishment may charge the responsible party or the estate of the funeral recipient for the deficiency. H. The "applicable percentage" means either of the following: (1) The percentage of the total cost of the funeral which is attributable to the guaranteed funeral goods and services shall be calculated by dividing the total cost of the guaranteed funeral goods and services, as set forth in the statement of funeral goods and services in the preneed funeral contract, by the total cost of the funeral set forth in that statement. (2) The percentage of total cost of the funeral which is attributable to the nonguaranteed funeral goods and services shall be calculated by dividing the total cost of the nonguaranteed funeral goods and services, as set forth in the statement of funeral goods and services in the preneed funeral contract, by the total cost of the funeral as set forth in that statement. (3) The percentages so calculated as provided above shall be rounded off to the nearest whole number and the sum of such percentages shall in all cases equal one hundred percent. I. If a funeral establishment which is a party to a preneed funeral contract does not provide the funeral goods and services for the funeral recipient of the contract upon his death, the contract shall be deemed null and void except for the designation of the refund designee and, upon receipt of a certified copy of the death certificate of such funeral recipient, the funeral establishment shall comply with all of the following: (1) Take all necessary and appropriate steps to relinquish all of its rights and claims to any preneed insurance policy or annuity funding the preneed funeral contract. (2) Pay or cause to be paid the funds of any funeral trust account, up to the amount available as follows: (a) To the funeral establishment that provided the funeral goods and services for the funeral of the funeral recipient in an amount equal to its total charges as shown on the statement of funeral goods and services for the funeral net of any proceeds to be received from any preneed insurance policy or annuity.

(b) Any balance to the refund designee and if none is designated in the preneed funeral contract or if the refund designee predeceased the funeral recipient, then to the estate of the funeral recipient. Acts 2008, No. 799, §1, eff. Jan. 1, 2009. §37:866. Penalties

§37:867. Applicability Anything in this Part contained to the contrary notwithstanding, this Part shall not apply to any person, firm, corporation, trustee, partnership, association or other legal entity who now or hereafter exclusively engages in, owns, operates, controls and manages a cemetery authority located in the state of Louisiana, unless it sells, or attempts to sell, or contracts for merchandise or services commonly furnished by a funeral home such as caskets, embalming, funeral directing, use of funeral home facilities and use of a hearse or transportation of a dead human body. Acts 2008, No. 799, §1, eff. Jan. 1, 2009.


EXERCISE: PREPAID FUNERAL SERVICES OR MERCHANDISE

Read R.S. 37:861 (found on previous page) and find the following:

1. How should accounts be styled?

2. What documents do we need to pay funds at death?


QUIZ: PREPAID FUNERAL SERVICES OR MERCHANDISE

1. You may pay a funeral home in a prepaid funeral home account with a bill only.

a. True

b. False

2. These are put in one big account with all the funeral home funds.

a. True

b. False


1. b, 2.b


BUSINESS ACCOUNTS


SOLE PROPRIETOR

1. Overview

To establish a sole proprietorship all an individual is required to do is to start conducting business for profit.

There is no formal legal requirement for establishment. Some states may require the owner to file an

"Assumed Name Certificate" if doing business in any other name other than their own. Many require

Occupational Licenses filed in the parish in which the business operates. The business is owned by one

person and upon their death the business will cease.

2. Documentation to open

a. Assumed Name Certificate: You would require the original document and make a copy

from the original for your files.

b. Identification: Two types one should be primary. Follow CIP procedures.

c. TIN: Use the owner's Social Security number.

d. Signatures: The sole proprietor has complete control over who may sign on their account.

Using a Letter of Authorization, they may add or delete signatures from the account or they

may obtain new signature card contracts and resolution.

e. Resolution: Trade Name Affidavit--used to testify that the owner is who they say they

are. This is provided by the financial organization and signed in the presence of the person

opening the account.

f. Styling: Sandra Smith DBA Smith Financial Services.

3. At the death of the sole proprietor

At the death of the sole proprietary, we can continue to let any authorized signer write checks until we

receive notice in writing addressed to the financial institution. A surviving spouse can receipt for $10,000 of

the funds using a surviving spouse affidavit. The best is a court ordered "Letter of Appointment" which

gives someone the right to continue the business.


PARTNERSHIP

1. Description

Partnerships are created by contract in Louisiana when two or more persons enter into business together to

make a profit. They are required to file a Partnership Registry with the Secretary of State's office.


a. Identification: Proper identification required for partners. Follow CIP procedures.

b. TIN: Partnership.

c. Partnership Registry: Partnerships are required to file in Louisiana.

d. Resolution: All partners will be required to sign the partnership resolution. This authorizes the

financial institution to open the account. Sometimes the partnership agreement will authorize

a general or managing partner. In this event, the managing partner may be the only one to sign

the agreement.

e. Signature Card Contract: The partnership who are authorized to sign will do so. When signers

are added to the contract, a new resolution and contract should be signed. Any partner may

delete a non-partner from a signature card contract. A partner may not be deleted without

their consent.

f. Partnership Agreement: Obtain copy if partnership agreement.

3. At the death of a partner

You should consult the partnership agreement to see what procedures have been set up to handle deposit

accounts at the death of a partner. According to the document, you will usually get new signature card

contracts and resolutions. A court order may be issued to someone by the court to continue the business.

Follow the court order.


CORPORATION

1. Overview

Corporation is formed when Articles of Incorporation are filed with the Secretary of State to approve the

new business. Once approved by the state, a Certificate of Incorporation is issued. Corporations doing

business in more than one state must register as a "foreign corporation" in each state. A corporation is a

legal entity separate from its owners. The election of officers, usually contained in the minutes, is done at

the first board meeting. The opening and closing of an account is authorized by the Board of Directors and

carried out by the Corporate Secretary.


a. Identification: Proper identification of person negotiating. Follow CIP procedures.

b. TIN: Corporation's.

c. Certificate of Incorporation: Make a copy from a certified Certificate of Incorporation.

Stamp "Copy of a Certified Copy". Require portion of minutes outlining the officers and

who will be authorized to sign on an account. Also, you may require that portion of the

Articles that list Board of Directors. If the financial institution requires the complete

Articles of Incorporation, they should be read completely since by accepting the Articles the

financial institution is agreeing to its terms.

d. Resolution: Permission is granted by the Board of directors with a Resolution for an

individual to do business for the Corporation. Signed by the corporate Secretary, the

company should provide one resolution for each account. If a corporate seal is required by

the state, the resolution must be affixed with the seal.

e. Signature Card: Signed by the officers the Board of Directors authorizes.

3. Death

At the death of any officer or signer on the account, you should get new signature card contract and

resolutions. You may also wish to receive a copy of the Board minutes which authorizes the new officer or

signer.


LAW: THE CONTINUATION OF BUSINESS—CODE OF CIVIL PROCEDURE

Art. 3224 Continuation of Business

When it appears to the best interest of the

succession, and after compliance with Article 3229,

the court may authorize a succession representative

to continue any business of the deceased for the

benefit of the succession; but if the deceased died

testate and his succession is solvent, the order of

court shall be subject to the provisions of the

testament. This order may contain such conditions,

restrictions, regulations, and requirements as the

court may direct.

Art. 3224.1 Continuation of corporation or

partnership in which decedent held majority interest

A. The succession representative of an estate

owning a majority interest in a corporation or

partnership shall provide notice as provided in Articles

3272 and 3282 prior to alienating, encumbering, or

disposing of any real property of a corporation or

partnership in which the decedent held a majority

interest at the time of his death. The notification

required herein shall be by certified mail to the last

known address of the heirs or legatees. The heirs and

legatees may waive this notification.

B. Upon motion by an heir or legatee, and

contradictory hearing thereon, the court may require

that a succession representative of an estate owning a

majority interest in a corporation or partnership seek

court approval prior to alienating, encumbering, or

disposing of any or all of the real property belonging

to the corporation or partnership.

Acts 1992, No. 999,§ 1.

Art. 3225. Continuation of business, interim order

unappealable

When an application to continue business

has been filed, the court may issue an interim ex parte

order to the succession representative to continue

the business immediately until such time as the

procedure provided for by Article 3229 may be

complied with. The order granted herein shall expire

at the end of forty-five days unless extended by the

court.

No appeal shall lie from the granting or

denial of the interim order.


Art. 3229. Notice by publication of application for

court order: opposition

A. When an application is made for an order

under Articles 3198, and 3224 through 3228, notice of

the application shall be published once in the parish

where the succession proceeding is pending in the

manner provided by law. When an application is

made for an order under Article 3226 to grant a

mineral lease, the notice shall also be published in the

parish or parishes in which the affected property is

located.

B. A court order shall not be required for the

publication of the notice. The notice shall state that

the order may be issued after the expiration of seven

days from the date of publication and that an

opposition may be filed at any time prior to the

issuance of the order. If no opposition is filed, the

court may grant the authority requested at any time

after the expiration of the seven days from the date of

publication.

C. An opposition shall be tried as a summary

proceeding.

Amended by Acts 1974, No. 131,§ 2; Acts 1981, No.

317,§ 1; Acts 1987, No. 269,§ 1.


EXERCISE: BUSINESS ACCOUNTS

1. Read Article 3224 (previous pages) on Continuation of Business. When can a succession

representative continue the business?

2. Read Article 3224.1. Does the court have to approve actions on behalf of a corporation, and

when?


QUIZ: BUSINESS ACCOUNTS

1. A sole proprietorship ceases at death.

a. True

b. False

2. A partnership ceases at death.

a. True

b. False

3. A corporation ceases at death.

a. True

b. False

4. The court can give an order to continue the business.

a. True

b. False

1. a, 2.b, 3.b, 4.a


TRUST & CUSTODIAL ACCOUNTS


FORMAL REVOCABLE LIVING TRUST

1. Overview

A revocable living trust is a trust by which an individual or a couple transfers legal ownership to the trust

account. The grantor or settlor will at least initially also be the trustee.

The trust owns the assets, but the trustee retains control. Since the person setting up the account will also

be the trustee, they will be able to do all the things they could do before--buy, sell, transfer, borrow etc.

However once placed in the trust the assets avoid the probate process and can be distributed immediately

at the death of the grantor.


a. Account Styling: Legal Name of Trust.

1. Examples: JoeSmith, Trustee under the Smith Living Trust

2. Joeand Mary Smith, Trustees under the Smith Living Trust

b. Trust Agreement: You can obtain a copy of the trust agreement, but in accepting such

agreement your financial institution will be bound by all its terms. An alternative is to

obtain a copy of a Trust Abstract, Trust Memorandum or Declaration of Trust which

contains: (1) proof that the trust was created (the first page of the trust will do); (2)

who the original trustees are; (3) the date the trust was created/the date the trust

document was signed; (4) what the trustees powers are; (5) the signature of the

grantor(s) and; (6) the notarization of the trust document.

c. Signer(s): Trustee(s).

d. TIN: Grantor/Trustee initially the same person.

e. Acceptable Identification: Trustee(s). Follow CIP procedures.

3. Death

Since a trust is a separate legal entity, much like a corporation, the trust document should tell you what

happens at the death of the trustee. Usually a successor trustee is named in the document. The successor

trustee will present a death certificate of the original trustee and a Declaration of Successor Trustee to the

financial institution.

Usually, a surviving spouse is the new trustee. Upon the death of both spouses, the successor trustee

would take charge of the trust. Once the original trustee(s) is deceased, the trust becomes irrevocable and

must be set up with a taxpayer identification number of its own.


FORMAL IRREVOCABLE TRUST ACCOUNT

1. Overview

The irrevocable trust is one that the creator/settlor of a trust cannot revoke or alter. The settlor of the trust

has given up the right to change his/her mind and has relinquished the trust property either permanently or

for some specified period of time. An irrevocable trust may be created by will or during the lifetime of the

settlor. It may result from a revocable trust, which by its terms becomes irrevocable upon the death of the

settlor. The use of irrevocable trusts can result in substantial savings in estate taxes and, to a lesser extent,

in income taxes.


a. Account Styling: Legal name of trust.

Examples:

Mary Smith, Trustee under the will of Joe Smith

Joe Smith, Trustee under Trust Agreement dated June 5, 1993

Joe Smith, Trust for ABC Company Pension Plan

b. Trust Agreement: You can obtain a copy of the trust agreement, but in accepting such

agreement your financial institution will be bound by all its terms. An alternative is to

obtain a copy of a Trust Abstract, Trust Memorandum or Declaration of Trust which

contains: (1) proof that the trust was created (the first page of the trust will do); (2)

who the original trustees are; (3) the date the trust was created/the date the trust

document was signed; (4) what the trustees' powers are; (5) the signature of the

grantor(s) and; (6) the notarization of the trust document.

c. Signer(s): Trustee(s).

d. TIN: Trust's.

e. Identification: Trustee(s). Follow CIP procedures.


DECLARATION OF SUCCESSOR TRUSTEE

Name of Trust ________________________________________________ Account Number ______________________________________________ I, ____________________________________, do hereby declare that I am duly appointed successor trustee for the above-named trust. Attached to this declaration are copies of pages from that trust which show me as the next appointed successor, and the conditions under which I am to assume the duties of trustee for this trust. I have assumed the duties of trustee for this trust because of the following reason: _________ Death of the prior trustee. Attached to this Declaration is a certified copy of that

trustee's death certificate. _________ Incompetence of the prior trustee. Attached to this Declaration is a certified copy of

the Declaration of Incompetence issued by a court of competent jurisdiction for that prior trustee.

_________ Other: _____________________________________ _____________________________________ _____________________________________ I hereby agree to indemnify _____________________ (Bank) for any amounts which the Bank expends in any action relating to the disbursement of funds from his account to me or any other person in connection with this trust's account. Furthermore, I agree to reimburse ____________________________ (Bank) for any transfers made to me or for my benefit, in whatever capacity or name, that are subsequently determined to not have been proper or authorized from this trust's account. For purposes of this Declaration, amounts expended include any damages paid or determined to be owning from _______________________ (Bank) to other claimants on this account's funds, and attorney's fees and costs as incurred by the Bank in resolving any action regarding the disbursement of funds from this trust's account. __________________________________________________ _____________________ Trustee Date

NOTARY


MINOR ACCOUNTS—UNIFORM TRANSFER TO MINORS ACCOUNT

1. Overview

A custodian may want to set aside money for a minor as a irrevocable gift. This can be handled under the

Uniform Transfer to Minor's Act. In such a case, the money belongs to the child, if the custodian withdraws

any of the money it must be used for the benefit of the child or the child may sue. Upon the age of (18 in

LA) majority, the funds will be turned over to the child. Only one custodian and one child are allowed per

account.


a. Account Styling: Johnnie Smith, a minor by John Smith, custodian under the UTMA.

b. TIN: Minor's Social Security number.

c. Signature Card Contract: Custodian authorized signer. Upon majority funds revert to minor.

d. Acceptable Identification: Custodian. Follow CIP procedures.

3. Death

In the case of the death of the child, the child's estate will receive the funds. In the case of death of the

custodian, the guardian of the child will name a successor custodian. If no guardian, then the child will

name the successor custodian. Follow procedures under type of succession.


FLOWCHART: UTMA AT DEATH

DEATH

Child Dies Custodian Dies

Funds go to

the child’s

estate

Documentation

1. Death Certificate 2. Letters of

Administration or Letters of Testamentary

Did custodian name

successor?

YES NO

Successor

custodian takes

over as

custodian

If child is over 14

and acts in 60

days may name

own custodian

subject to state

law

If not, then

legal

guardian

becomes

custodian

Documentation 1. Death Certificate on custodian 2. Identification on new custodian 3. New signature card


LAW: R.S. 9:768 RENUNCIATION, RESIGNATION, DEATH, OR REMOVAL OF CUSTODIAN;

DESIGNATION OF SUCCESSOR CUSTODIAN (UTMA)

R. S. 9:768. Renunciation, resignation, death, or

removal of custodian; designation of successor

custodian

A. A person nominated under R. S. 9:753 or

designated under R. S. 9:759 as custodian may decline

to serve by delivering a valid disclaimer to the person

who made the nomination or to the transferor or the

transferor's legal representative. If the event giving

rise to a transfer has not occurred and no substitute

custodian able, willing, and eligible to serve was

nominated under R. S. 9:753, the person who made

the nomination may nominate a substitute custodian

under R. S. 9:753; otherwise the transferor or the

transferor's legal representative shall designate a

substitute custodian at the time of the transfer, in

either case from among the persons eligible to serve

as custodian for that kind of property under R. S.

9:759(a). The custodian so designated has the rights

of a successor custodian.

B. A custodian at any time may designate a

trust company or an adult other than a transferor

under R. S. 9:754 as successor custodian by executing

and dating an instrument of designation before a

subscribing witness other than the successor. If the

instrument of designation does not contain, or is not

accompanied by, the resignation of the custodian, the

designation of the successor does not take effect until

the custodian resigns, dies, becomes incapacitated, or

is removed.

C. A custodian may resign at any time by

delivering written notice to the minor if the minor has

attained the age of fourteen years and to the

successor custodian and by delivering the custodial

property to the successor custodian.

D. If a custodian is ineligible, dies, or becomes

incapacitated without having effectively designated a

successor and the minor has attained the age of

fourteen years, the minor may designate as successor

custodian, in the manner prescribed in Subsection B

of this Section, an adult member of the minor's family,

a tutor of the minor, or a trust company. If the minor

has not attained the age of fourteen years or fails to

act within sixty days after the ineligibility, death, or

incapacity, the tutor of the minor becomes successor

custodian. If the minor has no tutor or the tutor

declines to act, the transferor, the legal

representative of the transferor or of the custodian,

an adult member of the minor's family, or any other

interested person may petition the court to designate

a successor custodian.

E. A custodian who declines to serve under

Subsection A of this section or resigns under

Subsection C of this Section, or the legal

representative of a deceased or incapacitated

custodian, as soon as practicable, shall put the

custodial property and records in the possession and

control of the successor custodian. The successor

custodian by action may enforce the obligation to

deliver custodial property and records and becomes

responsible for each item as received.

F. A transferor, the legal representative of a

transferor, an adult member of the minor's family, a

guardian of the person of the minor, the tutor of the

minor, or the minor, if the minor has attained the age

of fourteen years, may petition the court to remove

the custodian for cause and to designate a successor

custodian other than a transferor under R. S. 9:754 or

to require the custodian to give appropriate bond.

Acts 1987, No. 469,§ 1, eff. Jan. 1, 1988.

Successions 105 | P a g e ©Gettechnical Inc. 2013

EXERCISE: UTMA

Look at R.S. 9:768 (previous pages) on UTMA accounts.

1. In Section D, what does it say will happen at death?

2. What can the child do if they are age 14 and no successor has been named?

3. What documents would you need to change the account to a new custodian?


QUIZ: UTMA

1. On a UTMA, if the child dies the funds go to the custodian’s estate.

a. True

b. False

2. If the custodian dies and names a successor custodian, the successor takes over as custodian for the

child.

a. True

b. False

1.b, 2.a


CUSTOMER OPTIONS


OPTIONS FOR CUSTOMERS WORKSHEET

A

Transfer of Small Deposits – $5000 or less (Banking Statute) No will Spouse & heirs, if any Deposits in decedent’s name alone or with spouse Amount is less than $5000 at all financial institutions Proper affidavit $5000 or less

B

Spouse Affidavit Spouse Deposits in decedent’s name $10,000 or less requested in aggregate Proper affidavit

C

Small Succession No will Intestate Deposit in decedent’s name $75,000 Proper affidavit Descendants, ascendants brothers, sisters, surviving spouse

D

Formal Succession Will No spouse No spouse & property is immovable Judgment or letters


PROBLEMS

USING YOUR OPTIONS WORKSHEET ON THE PREVIOUS PAGE, FIND WHICH OPTIONS BEST FIT THE FOLLOWING

CUSTOMER SITUATIONS. YOU MAY HAVE MORE THAN ONE OPTION.

1. Betty Smith died leaving one child and $8,000 on deposit at ABC Institution. She did not have a will and

had no surviving spouse. She had no other assets.

2. Cyndi Connor died and has $40,000 in assets, a small house and a husband who survived her. She left

everything to her husband in her will. $30,000 of the funds is in a joint account with her husband.

$10,000 is in an individual account.

3. Bill White has $800 in deposit in 123 Financial Institution. He has a wife and a son who survive him. He

had no will and no immovable property.

4. Lou Jones wrote a will and left everything to his son Kevin. He had $7,000 in savings and no immovable

property.

5. Jane Black died and had a sole proprietorship in her name only with $9,000 in the account. She had a

will and she and her husband had a small home.

Answers: 1. Small Succession, 2. He can get to funds through joint account and surviving spouse affidavit. The rest through formal succession, 3. Transfer

of small deposits, 4. Formal succession, 5. Formal succession. He can access the business account with surviving spouse affidavit.


APPENDIX


SAMPLE SUCCESSION DOCUMENTS































LAW SUIT KENNEDY VS. FAGAN

92 So.3d 528

Court of Appeal of Louisiana,

First Circuit.

Richard KENNEDY, Individually and as the Dative

Testamentary Executor of and the Succession of Sylvia

Antonia Acosta Kennedy Graves

v.

Julie Kennedy FAGAN, Thomas Schafer III, ABC

Insurance Company, T. Lynn Witt–Stamps, J. Jackson

Stamps, Def Insurance Company, Bank of Louisiana

and Shirley Henderson.

No. 2011 CA 0482. | May 1, 2012. | Rehearing Denied

July 31, 2012.

Synopsis

Background: Mother’s estate brought action against

daughter, former attorneys for estate, bank holding

assets belonging to estate, and bank employee, seeking

to recover estate assets and damages. The 22nd Judicial

District Court, Parish of St. Tammany, No. 2006–10024,

Martin E. Coady, J., granted summary judgment to bank

and employee. Estate appealed.

Holdings: The Court of Appeal, Pettigrew, J., held that:

[1] trial court’s failure to apply legal presumption of

liability against bank was error;

[2] bank acted unreasonably in allowing then-attorney for

decedent’s estate to access safety deposit box opened in

name of decedent’s succession; and

[3] succession representative’s authorization was

insufficient to support bank’s release of funds from

deceased customer’s account.

Affirmed in part, reversed in part, and remanded.

McClendon, J., dissented in part and assigned reasons

and would grant rehearing.

West Headnotes (3)

[1] Judgment

Banks, corporations and associations

Trial court’s failure to apply legal presumption

of liability against bank was error, in grant of

summary judgment to bank on estate’s action

seeking to recover estate assets after bank

allegedly released funds from decedent’s

account without court authority, where

evidence showed that bank had been advised of

decedent’s death, testamentary executrix had

requested that bank freeze decedent’s bank

accounts until disposition of estate, and bank

employee confirmed that bank had imposed a

freeze on account. LSA–R.S. 6:325; LSA–C.C.P.

arts. 3222, 3224, 3302, 3303.

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[2] Warehousemen

Loss of or injury to deposit

Bank acted unreasonably in allowing then-

attorney for decedent’s estate to access safety

deposit box opened in name of decedent’s

succession, pending public inventory of box

contents or court order, in case in which estate

asserted that then-attorney for testamentary

executrix had taken personal property from

safety deposit box located at bank and that

attorney had been allowed to enter safety

deposit box without obtaining court approval

and without signing signature cards, where

bank had received notice of decedent’s death,

of appointment of executrix, and of executrix’s

request that bank freeze decedent’s bank

accounts until disposition of estate.

[3] Banks and Banking

Repayment in general

Executors and Administrators

Authority and duty in general

Succession representative’s authorization was

insufficient to support bank’s release of funds

from deceased customer’s account; court

authorization was required. LSA–C.C.P. arts.

3303, 3307.

Attorneys and Law Firms

*529 Maurice J. LeGardeur Jr., Covington, LA, Adam S.

Lambert, New Orleans, LA, for Plaintiff–Appellant Richard

Kennedy.

Michael S. Fawer, Covington LA, for Defendant–Appellee,

Julie Kennedy–Fagan.

Henry L. Klein, New Orleans, LA, for Defendants–

Appellees Bank of Louisiana and Shirley Henderson.

Before CARTER, C.J., KUHN, PETTIGREW, McCLENDON,

and WELCH, JJ.

Opinion

PETTIGREW, J.

**2 In this action for damages, plaintiff-appellant,

individually, and in his capacity as the dative

testamentary executor of the estate of his late mother,

filed suit naming *530 numerous defendants, including

his sister, who was the former testamentary executrix,

the former attorneys for the estate, their respective

malpractice insurers, a bank holding assets belonging to

the estate, and an employee of said bank. Cross motions

for summary judgment were later filed, on behalf of

plaintiff-appellant, as well as on behalf of the bank and

its employee. From a denial of his motion for summary

judgment and a grant of summary judgment in favor of

the bank and its employee, which dismissed his claims

against said defendants, plaintiff-appellant has appealed

to this court.

FACTS

The present litigation is yet another lawsuit arising out of

the 2001 murder-suicide of Emory Lea Graves, Sr. and his

wife, Sylvia Antonia Acosta Kennedy Graves. See In re

Succession of Graves, 2007–2180 (La.App. 1 Cir. 3/12/08),

985 So.2d 140, writ denied, 2008–0799 (La.6/6/08), 983

So.2d 919; Kennedy–Fagan v. Estate of Graves, 2007–


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1062 (La.App. 1 Cir. 7/21/08), 993 So.2d 255, writ denied,

2008–2079 (La.11/10/08), 996 So.2d 1073.

Sylvia Antonia Acosta Kennedy Graves, decedent herein

(“decedent”), died testate as a result of a murder-suicide

on or about July 21, 2001. The decedent left two

legatees, who were children from her first marriage—a

daughter, defendant Julie Esther Kennedy–Fagan

(“Julie”), and a son, plaintiff-appellant, Richard Vincent

Kennedy (“Richard”). According to the terms of the

decedent’s will, Julie was named as executrix of the

estate. Due to her apparent failure to properly

administer and liquidate decedent’s estate, Julie was

removed from her duties as testamentary executrix by

order of the trial court. In Julie’s stead, her brother and

co-heir, Richard, was appointed by the trial court to serve

as the dative testamentary executor.

On January 3, 2006, Richard instituted the present tort

suit, appearing individually, and in his capacity as

executor of the estate. Based upon the allegations of his

petition, Richard seeks to recover estate assets, monies,

and damages resulting from the actions **3 and/or

inactions of the defendants named herein. Following a

denial of his motion for a partial summary judgment and

a grant of summary judgment in favor of the bank and its

employee dismissing his claims against said defendants,

Richard now appeals. We affirm in part, reverse in part,

and remand.

Richard alleged in the instant petition that his sister Julie

retained attorneys T. Lynn Witt–Stamps and her

husband, attorney J. Jackson Stamps,1 to represent

decedent’s estate, and began administration of the

estate on or about August 8, 2001. It was also alleged

that “[t]he estate consisted of several valuable

properties, including immovable rental properties in

Louisiana and other states, three automobiles, and

valuable estate jewelry, which was [sic] owned by

decedent at the time of her death.” Richard further

alleged that Julie and her attorneys opened succession

bank accounts at the Bank of Louisiana (“Bank”), 636

Gause Boulevard, Slidell, Louisiana, with the assistance of

their friend and/or associate, defendant Shirley

Henderson, the assistant vice president and manager of

the Gause Boulevard Branch of the Bank. It was alleged

that Ms. Henderson “routinely breached her duties to

the bank and its clients in order to assist [Julie], and her

attorneys.” Richard claimed that Julie together with

“defendants *531 T. Lynn Witt–Stamps and J. Jackson

Stamps, took physical possession of the estate jewelry,

which [Julie] herself valued at over $100,000.00, and

placed [said] jewelry into a [safety deposit] box located

at the [Bank].”

Richard alleged in the instant action for damages that

during Julie’s administration of the estate, and while

attorneys T. Lynn Witt–Stamps, J. Jackson Stamps

(collectively, “Witt and Stamps”), and later, Thomas

Schafer, III, provided legal representation to the estate,

said defendants were allowed to enter the safety deposit

box at the Bank without obtaining court approval and

without even signing signature cards for the said safety

deposit box. It was also alleged that during one of these

unrecorded entries into the **4 estate’s safety deposit

box, the valuable pieces of estate jewelry were removed

leaving only “worthless costume jewelry and paste.”

Additionally, Richard alleged that Julie authorized Mrs.

Witt–Stamps to sign checks on the decedent’s bank

accounts and withdraw over $30,000.00 in attorney fees

from said accounts without court approval or notice and

without the court’s knowledge.

Richard also alleged that the Bank knew or should have

known of the actions of Julie’s attorney, Mrs. Witt–

Stamps, as the Bank kept banking records in the normal

course of its business. Additionally, it was alleged that

the Bank knew or should have known of the close

relationship between its employee, Ms. Henderson, Julie,

and Mrs. Witt–Stamps, and should have closely

monitored the decedent’s bank accounts.




Richard further alleged that Julie’s subsequent attorney,

Mr. Schafer, knew or should have known that prior

counsel, Witt and Stamps, had removed funds from the

decedent’s accounts without court approval, as records

of said transactions and letters from Julie “authorizing”

withdrawals by Mrs. Witt–Stamps were later discovered

among Mr. Schafer’s files.

It was alleged that the aforementioned unauthorized

acts were effectuated during Julie’s administration of

decedent’s estate with the apparent assistance of Ms.

Henderson, in her official capacity as a bank officer with

the Bank, thereby rendering the Bank vicariously liable.

ACTION OF THE TRIAL COURT

On April 8, 2010, Richard filed a motion for partial

summary judgment against the Bank and Ms. Henderson

for estate funds that were illegally dispersed to Witt and

Stamps by the Bank and Ms. Henderson. Richard also

sought a partial summary judgment on the issue of

liability against these same defendants for the jewelry

that was allegedly stolen from the safety deposit box at

the Bank.

In response, the Bank and Ms. Henderson filed a cross-

motion for summary judgment and claimed that the Bank

was not liable because it was allegedly authorized by

Julie, its “customer” and executrix of the estate, to issue

11 cashier’s checks signed by Ms. Henderson for funeral

expenses, legal fees, and taxes. The Bank argued that

since **5 Julie had consented to its drafting of the

cashier’s checks and given authorization for the estate’s

attorneys to enter the safety deposit box, the Bank was

only honoring the wishes of its customer and could not

be held liable.

Following a hearing on June 29, 2010, the trial court, for

reasons orally assigned, denied Richard’s partial motion

for summary judgment against the Bank and Ms.

Henderson, and dismissed Richard’s claims against these

defendants. Although the trial court specifically rejected

the arguments put forth by the Bank regarding *532

prescription and abandonment,2 the trial court found

that Julie, in her capacity as executrix, had the authority

to write checks and authorize withdrawals from the

decedent’s Bank accounts. It was on this ground that the

trial court granted the cross-motion for summary

judgment filed by the Bank and Ms. Henderson. From

this judgment, Richard, both individually, and in his

capacity as executor of the estate of decedent, has

appealed.

ISSUES PRESENTED ON APPEAL

In connection with his appeal in this matter, Richard

presents the following issues for review and disposition

by this court:

1. Did the trial court commit an error of law by

failing to apply the legal presumption of liability for

a bank that loses deposits which it was paid to keep

safe?

2. Did the trial court commit an error of law by

failing to apply the legal presumption of liability

under the theory of Res Ipsa Loquitur?

3. When a bank’s customer and account holder dies,

can the bank simply release funds from the

decedent’s account on orders of the decedent’s

daughter without prior orders of a court, or must

that bank require a court order to release funds

from the bank accounts of a deceased person?

4. May a bank be held liable for property lost or

stolen from one of its safety deposit boxes when the

bank admittedly failed to follow proper banking

procedures and protocols by allowing unauthorized

persons to enter the box without even signing the

signature card or recording their entry into the box?

**6 STANDARD OF REVIEW

A motion for summary judgment is a procedural device


used to avoid a full scale trial when there is no genuine

issue of material fact. Gonzales v. Kissner, 2008–2154, p.

4 (La.App. 1 Cir. 9/11/09), 24 So.3d 214, 217. Summary

judgment is properly granted if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with affidavits, if any, show that there is

no genuine issue of material fact, and that mover is

entitled to judgment as a matter of law. La.Code Civ. P.

art. 966(B). Summary judgment is favored and is

designed to secure the just, speedy, and inexpensive

determination of every action. La.Code Civ. P. art.

966(A)(2); Aucoin v. Rochel, 2008–1180, p. 5 (La.App. 1

Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 2009–0122

(La.3/27/09), 5 So.3d 143.

On a motion for summary judgment, the burden of proof

is on the mover. If, however, the mover will not bear the

burden of proof at trial on the matter that is before the

court on the motion for summary judgment, the mover’s

burden on the motion does not require that all essential

elements of the adverse party’s claim, action, or defense

be negated. Instead, the mover must point out to the

court that there is an absence of factual support for one

or more elements essential to the adverse party’s claim,

action or defense. Thereafter, the adverse party must

produce factual evidence sufficient to establish that he

will be able to satisfy his evidentiary burden of proof at

trial. If the adverse party fails to meet this burden, there

is no genuine issue *533 of material fact, and the mover

is entitled to summary judgment. La.Code Civ. P. art.

966(C)(2); Robles v. ExxonMobile, 2002–0854, p. 4

(La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is

appropriate, appellate courts review evidence de novo

under the same criteria that govern the trial court’s

determination of whether summary judgment is

appropriate. Boudreaux v. Vankerkhove, 2007–2555, p. 5

(La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729–730. An

appellate court thus asks the same questions as does the

trial court in determining whether summary judgment is

appropriate: whether the mover-appellant is entitled to

judgment as a matter of law. **7 Ernest v. Petroleum

Service Corp., 2002–2482, p. 3 (La.App. 1 Cir. 11/19/03),

868 So.2d 96, 97, writ denied, 2003–3439 (La.2/20/04),

866 So.2d 830.

ANALYSIS

Release of Funds without Court Authority

[1] The initial issue raised by Richard is whether the trial

court erred in failing to apply the legal presumption of

liability against the Bank. Richard asserts the Bank was a

compensated depositary that failed to account for

deposits under its exclusive care, custody, and control.

It is evident from the record that decedent had several

accounts at the Bank prior to her death.3 In

correspondence dated July 30, 2001, Julie wrote to the

bookkeeping department of the Bank advising of

decedent’s death on July 27, 2001. At that time, Julie

requested that the Bank “freeze” decedent’s “bank

accounts until disposition of the estate.” The only

account referenced in this letter was the Kennedy

Succession account No. 344–117. In her deposition

testimony, Ms. Henderson stated that the Bank imposed

a “freeze” on the Kennedy Succession account that day,

July 30, 2001.

The record further reflects that on August 14, 2001, Julie

opened a checking account (No. 390–232) at the Bank

entitled “Succession of Sylvia Antonia Acosta Kennedy–

Graves” (hereinafter, “the Decedent’s Succession

Account”). Julie was the only authorized signatory on the

Decedent’s Succession Account. Through a facsimile

transmission addressed “To Whom It May Concern,” and

sent the following day, August 15, 2001, at

approximately 6 p.m., Julie advised the Bank of her

appointment as executrix of decedent’s estate. In

connection therewith, Julie forwarded copies of

decedent’s death certificate and letters testamentary. In

duplicate correspondence alternately referencing the

Kennedy Succession account (No. 344–117) and the Joint

Account (No. 365–572), Julie requested that funds from

said accounts be transferred to the Decedent’s

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Succession **8 Account.4 Said correspondence

specifically directed that “[n]o funds are to be paid

directly to any beneficiary or anyone other than the

[Decedent’s] *534 Succession/Estate Account, per the

order of the court.”

In her deposition, Ms. Henderson testified that she had

been employed by the Bank for 28 years. Ms. Henderson

also admitted that although she had no training in

Louisiana succession law, and had not attended any

seminars involving succession law, she was generally

aware that a succession representative needed to be

court-appointed. Ms. Henderson denied having any

knowledge as to what is required for an administrator to

carry out his or her duties with respect to bank accounts.

Ms. Henderson confirmed that at Julie’s direction she

issued cashier’s checks on the Kennedy Succession

account (No. 344–117) to pay invoices submitted by

attorneys Witt and Stamps. Copies of $44,275.62 in

transactions processed on the Kennedy Succession

account (No. 344–117) for the period July 2001 through

April 2002 were attached in globo to Ms. Henderson’s

deposition as Exhibit “SH–8.”5 This account was

eventually closed due to insufficient funds on November

19, 2002.

Through a court order signed January 15, 2002, Julie

obtained authorization to pay $6,150.73 in urgent debts

owed by the decedent. Said debts included payment of

property taxes, flood insurance premium, safety deposit

box and mail box rentals, and reimbursement of

$5,533.856 for decedent’s funeral expenses. Ms.

Henderson admitted that at Julie’s direction following

court authorization, she issued a cashier’s check debiting

the Decedent’s Succession Account (No. 390–232) for the

payment of property taxes.

**9 In their brief to this court, the Bank and Ms.

Henderson contend that Richard’s claims regarding the

Bank’s “unauthorized” issuance of cashier’s checks are

barred due to application of La. R.S. 10:4–406.7 The Bank

and Ms. Henderson claim that it was incumbent upon

Richard “to examine his monthly statement and to ‘...

exercise reasonable promptness in examining the

statement or the items to determine whether any

payment was not authorized ...’ ” Several paragraphs

later, the Bank and Ms. Henderson admit that previously,

on July 30, 2001, Julie, in her capacity as decedent’s

succession representative, instructed the Bank to

forward all statements and items regarding the Kennedy

Succession account (No. 344–117) to Julie’s address in

Florida. The Bank and Ms. Henderson attempt to argue,

albeit unsuccessfully, that they merely acted in

accordance with the express wishes of their customer,

Julie, who was an authorized signatory on the Kennedy

Succession account.8

*535 Given Julie’s July 30, 2001 correspondence advising

the Bank of decedent’s death, Julie’s request therein that

the Bank “freeze” decedent’s “bank accounts until

disposition of the estate,” and Ms. Henderson’s

deposition testimony confirming the Bank’s imposition of

a “freeze” on the Kennedy Succession account as of July

30, 2001; it is unclear why the Bank nevertheless

proceeded to process $44,275.62 in transactions on the

Kennedy Succession account (No. 344–117) for the

period July 2001 through April 2002 when the account

funds were depleted. Louisiana Revised Statutes 6:325,

when read in connection with La.Code Civ. P. arts. 3222,

3224, 3302, and 3303, prohibits a Bank that receives

written notice of the death of a customer from

transferring any assets belonging to the deceased person

without proper court authority and receiving a receipt

therefor.

The trial court clearly erred in granting summary

judgment in favor of the Bank and Ms. Henderson.

**10 Applicability of Res Ipsa Loquitur

[2] The second issue raised by Richard is whether the trial

court erred in failing to apply the evidentiary doctrine of

res ipsa loquitur to establish through circumstantial

evidence the negligence of the Bank and Ms. Henderson.

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In our previous opinion in Broussard v. Voorhies, 2006–

2306, p. 6 (La.App. 1 Cir. 9/19/07), 970 So.2d 1038, 1043,

writ denied, 2007–2052 (La.12/14/07), 970 So.2d 535, a

panel of this court summarized the law with respect to

res ipsa loquitur and stated:

The plaintiff in a negligence case

may meet his burden of proof by

presenting both direct and

circumstantial evidence. Cangelosi

v. Our Lady of the Lake Med. Ctr.,

564 So.2d 654, 664 (La.1990)(on

rehearing). Res ipsa loquitur is not

a substantive legal tenet, but

rather an evidentiary doctrine

under which a tort claim may be

proved by circumstantial evidence.

Gisclair v. Bonneval, 04–2474, p. 5

(La.App. 1st Cir. 12/22/05), 928

So.2d 39, 42. The doctrine permits

the inference of negligence from

the surrounding circumstances,

and merely assists the plaintiff in

presenting a prima facie case of

negligence when direct evidence is

not available. Cangelosi, 564 So.2d

at 665. Because application of res

ipsa loquitur is an exception to the

general rule that negligence is not

to be presumed, it should be

sparingly applied. Spott v. Otis

Elevator Co., 601 So.2d 1355, 1362

(La.1992). Generally, it may be

applied when three requirements

are met: (1) the circumstances

surrounding the accident are so

unusual that, in the absence of

other pertinent evidence, there is

an inference of negligence on the

part of the defendant; (2) the

defendant had exclusive control

over the thing causing the injury;

and (3) the circumstances are such

that the only reasonable and fair

conclusion is that the accident was

due to a breach of duty on the

defendant’s part. Id.

Based upon our de novo review of this matter, we

conclude that application of the doctrine of res ipsa

loquitur is not required given the undisputed facts of this

case.

The deposition testimony of Ms. Henderson discloses

that on January 14, 2002, Julie contracted on behalf of

the estate and rented safety deposit box # 94 at the Bank

in the name of the Succession of Sylvia Kennedy–Graves.9

On January 24, 2002, Julie faxed an authorization for

*536 Mrs. Witt–Stamps, then-attorney for decedent’s

estate, to access the safety deposit box. A copy of the

Bank Record of Access to Safe Deposit Vault for Safe #

94, attached to Ms. Henderson’s deposition, reveals that

during the period of Julie’s **11 administration, Mrs.

Witt–Stamps obtained entry to the safety deposit box on

January 24, 2002, February 4, 2002, and April 3, 2002.10

Ms. Henderson further stated once a person identifies

himself as an authorized user, signs the access record,

and produces a “guard key” for a safety deposit box, said

individual is permitted to examine the contents of the

safety deposit box in the privacy of the Bank “Coupon

Room.” Ms. Henderson stated that the Bank does not

keep records as to whether customers place items in or

remove items from its safety deposit boxes.

It is undisputed that the Bank and Ms. Henderson

received notice of the decedent’s death, of Julie’s

appointment as executrix, and Julie’s request that the

Bank “freeze” decedent’s “bank accounts until

disposition of the estate.” It would therefore seem

reasonable for the Bank to similarly deny access to a

safety deposit box subsequently opened in the name of

the decedent’s succession pending a public inventory of

it contents or further orders of the court.















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Again, it was error for the trial court to grant summary


Necessity for Court Approval to Release Succession

Funds

[3] The third issue presented by Richard is whether a bank

may release funds from a deceased customer’s account

based solely upon the order of a succession

representative. In his brief to this court, Richard cites

La.Code Civ. P. art. 3301 and asserts that a succession

representative must obtain court authorization prior to

paying a debt of the succession.

In their appellee brief, the Bank and Ms. Henderson offer

the following response:

Apparently, ... Richard ... believes

that court approval for each and

every check was required,

presumably by contradictory

motion at a full-blown hearing on

routine matters no court is

required to referee.... [T]here has

never been any law requiring what

[Richard] apparently expected, and

[Richard] has cited no authority to

the contrary. [Underscoring in

original.]

**12 The trial court, in its oral reasons for summary

judgment, opined:

I do believe the bank when they

have an account set-up for the

testamentary and at the time the

administrator or administratrix had

authority to write checks on the

account and authorized those

checks to be done, I think the bank

is not responsible at that point.

We disagree. Louisiana Code Civil Procedure art. 3301

clearly provides that “[a] succession representative may

pay an estate debt only with the authorization of the

court, except as provided by Articles 3224 and 3302.”11

Additionally, *537 La.Code Civ. P. art. 3303 provides, in

pertinent part, that “[w]hen a succession representative

desires to pay estate debts, he shall file a petition for

authority and shall include in or annex to the petition a

tableau of distribution listing those estate debts to be

paid.” Finally, La.Code Civ. P. art. 3307 provides, in

pertinent part, as follows:

Art. 3307. Homologation; payment

A. ... If no opposition has been filed, the

succession representative may have the

tableau of distribution homologated and the

court may grant the authority requested at any

time after the expiration of seven days from

the date of publication or from the date the

notice required by Article 3306 is mailed,

whichever is later.

B. ...

C. After the delay for a suspensive appeal from

the judgment of homologation has elapsed, the

succession representative shall pay the debts

approved by the court.

The trial court clearly erred in granting summary


Liability of Bank for Lost or Stolen Property

The final issue raised by Richard is whether a bank may

be held liable for property lost or stolen from one of its

safety deposit boxes. Specifically, Richard argues that

given the Bank’s failure to follow proper banking

procedure and protocol, the Bank is clearly liable for the

loss of jewelry from its safety deposit box.

In light of our previous, undisputed findings regarding

the notice received by the Bank and Ms. Henderson, we









reiterate our previous holding that the Bank should have

**13 denied access to the safety deposit box

subsequently opened in the name of the decedent’s

succession, pending a public inventory of it contents or

further orders of the court.

Once again, it was error for the trial court to grant

summary judgment in favor of the Bank and Ms.

Henderson.

CONCLUSION

For the above and foregoing reasons, we hereby affirm

the denial of the plaintiff’s motion for summary

judgment under our supervisory jurisdiction, rather than

appellate jurisdiction, for the reason that there remain

genuine issues of material fact. We nevertheless reverse

the trial court’s June 29, 2010 grant of summary


Accordingly, the previously dismissed claims against said

defendants put forth by Richard, both individually, and in

his capacity as executor of decedent’s estate, are hereby

reinstated. This matter is remanded to the trial court for

further proceedings consistent with this opinion. All costs

associated with this appeal shall be assessed against the

defendants, Bank of Louisiana and Shirley Henderson.

AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED.

McCLENDON, J., dissents in part and assigns reasons.

McCLENDON, J., dissents in part and assigns reasons.

**1 I disagree with the majority’s reversal of the

summary judgment granted in favor of the bank as it

pertains to the safety deposit box. The majority fails to

address the clear language of LSA–R.S. 6:325 A and B,

which provide:

A. A bank may deal with safety deposit boxes or

money, on deposit or otherwise, *538 and other

property in its possession standing in the name of a

deceased person or in which the latter had an interest

in accordance with its contract with its customer until

the bank receives notice in writing addressed to it of

the death of the customer. After receipt of such notice

in writing and upon proper authority and upon

obtaining a receipt therefor, any bank may transfer the

contents of a safety deposit box or any money and

other property in its possession standing in the name

of a deceased person or in which the latter had an

interest to the succession representative, the surviving

spouse, heirs, or legatees of the deceased.

B. The letters of the succession representative or the

judgment recognizing and putting the heirs in

possession issued by a court of competent jurisdiction

and accompanied by letters of tutorship or curatorship

of the heirs who are not sui juris shall constitute

proper authority for making the transfer which, when

so made and receipted for, shall be full protection to

the bank as to any heir, legatee, creditor, or other

person having rights or claims to funds or property of

the decedent. (Emphasis added.)

It is a well-settled principle of statutory construction that

absent clear evidence of a contrary legislative intention,

a statute should be interpreted according to its plain

language. **2 Cleco Evangeline, LLC v. Louisiana Tax

Commission, 01–2162, p. 5 (La.4/3/02), 813 So.2d 351,

354. When a law is clear and unambiguous and its

application does not lead to absurd consequences, the

law shall be applied as written and no further

interpretation may be made in search of the intent of the

legislature. LSA–C.C. art. 9; Meyer & Associates, Inc. v.

Coushatta Tribe of Louisiana, 07–2256, p. 7 (La.9/23/08),

992 So.2d 446, 451.

Therefore, under the plain language of the statute, once

the letters testamentary confirming Julie Kennedy Fagan







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as the executrix of the Succession of Sylvia Antonia

Acosta Kennedy Graves were presented to the bank, said

letters constituted proper authority and afforded full

protection to the bank as to any heir having rights or

claims to property of the decedent in the bank’s safety

deposit box.1 See LSA–R.S. 6:325 B.

Further, LSA–R.S. 6:328 provides that “[a] bank shall

establish reasonable security procedures to ensure that

only authorized persons shall have access to safety

deposit boxes.” Reasonable security procedures include

“requiring that the person seeking access present the key

to the safety deposit box he seeks to enter,” which was

done in this matter. Not only did Ms. Witt–Stamps

present a key to the safety deposit box, but the executrix

of the succession also faxed written authorization to the

bank for Ms. Witt–Stamps to access said safety deposit

box. Clearly, while there may be liability with regard to

the loss of property from the safety deposit box, any

actions arising from said loss are more properly directed

against the executrix rather than the bank.2

Accordingly, I respectfully dissent in part.

Parallel Citations

2011-0482 (La.App. 1 Cir. 5/1/12)

Footnotes 1 Attorneys T. Lynn Witt–Stamps and J. Jackson Stamps were later permanently disbarred by the Louisiana Supreme Court for

actions related to their dishonesty and untruthfulness. See In re Stamps, 2003–2985 (La.4/14/04), 874 So.2d 113 .

2 In his brief to this court, Richard asserts that inasmuch as the Bank and Ms. Henderson failed to appeal from the trial court’s

rejection of its arguments as to prescription and abandonment, the Bank and Ms. Henderson are precluded from raising these arguments in connection with the instant appeal.

3 In her deposition, Ms. Henderson testified that decedent had a succession account (No. 344–117) for her first husband, Mr.

Kennedy, which was opened on June 20, 1972. This account was titled the “Kennedy Succession.” Decedent, and her children, Julie and Richard, were all authorized signatories on this account. There was also another account (No. 365–572) that was a joint account with decedent’s second husband, Emory L. Graves. This account was titled “Emory L. Graves or Sylvia Kennedy Graves.” This account will hereinafter be referred to as the “Joint Account.”

4 Ms. Henderson testified that the Bank was not able to transfer funds from other accounts in which decedent held an interest

without a judgment of possession.

5 Of the $44, 275, 62 in transactions processed on the Kennedy Succession account (No. 344–117) for the period July 2001 through

April 2002, $39,718.24 was for the payment of invoices to the Witt–Stamps law firm.

6 This check, made payable to the Kennedy Succession account (No. 344–117) and dated February 5, 2002, was written on the

Decedent’s Succession Account (No. 390–232) and signed by Julie. A copy of this check was identified as “Exhibit 11” and attached to Ms. Henderson’s deposition. It is uncertain whether this check was ever negotiated.

7 Louisiana Revised Statutes 10:4–406(c) provides that if a bank makes available a statement of account, the customer must

“exercise reasonable promptness” to determine whether any payment was unauthorized.

8 The contention of the Bank and Ms. Henderson that Julie was their customer ignores the reality that the customer of the Bank

was actually the decedent’s estate, and the Bank was legally obligated to refrain from dispersing funds without court authority.

9 In her deposition testimony, Ms. Henderson stated that safety deposit box # 94 was a large box measuring 10″ x 10″ x 21–1/4″.

10

It should be noted that Richard alleges that upon his entry into the safety deposit box (with proper court authority and in the presence of all heirs, all attorneys, and Bank representatives) in 2005, the valuable pieces of jewelry were missing; however, the safety deposit box contained notes allegedly left by attorneys Witt and Stamps detailing several entries into the safety deposit box that were not documented on the Bank access record.




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11

Louisiana Code of Civil Procedure article 3224 applies to debts incurred in the operation of a business owned by a succession. Louisiana Code of Civil Procedure article 3302 grants authority to a court to authorize the payment of estate debts that should not be delayed.

1 I note that LSA–C.C.P. arts. 3302, and 3303, referred to by the majority, relate to actions of the succession representative, and

not of the bank.

2 Additionally, I point out that this case once again presents the procedural difficulty that arises from a restricted appeal where

interlocutory issues are directly related to appealable issues, requiring the exercise of our supervisory jurisdiction.




