Affidavit of heirship in Louisiana

What it does, and what it doesn’t

Statutory basis: La. C.C.P. art. 3421 (small succession defined; $125,000 gross value, or death at least 20 years prior of any value; as amended by Acts 2024, No. 90, §1); La. C.C.P. art. 3431 (small successions; judicial opening unnecessary); La. C.C.P. art. 3432 (affidavit for small succession. Louisiana domiciliary who died intestate; contents; affiants); La. C.C.P. art. 3432.1 (affidavit. Louisiana domiciliary who died testate; requires affirmation decedent owned no Louisiana immovable property); La. C.C.P. art. 3433 (affidavit, decedent domiciled outside Louisiana who died testate; attach testament and certified copy of foreign probate order); La. C.C.P. art. 3434 (effect: authority for payment/delivery; recordation in conveyance records; prima facie evidence; two-year prescription); La. C.C. art. 935 (ownership vests in successors immediately at death, the actual title-transfer provision); La. C.C.P. art. 3062 (judgment of possession is likewise only prima facie evidence); La. C.C.P. art. 3422 (small succession court costs)

When it becomes effective

None. There is no Texas-style dormancy period. The prima facie evidentiary presumption of La. C.C.P. art. 3434(C)(2) attaches immediately upon recordation in the parish conveyance records. There is no five-year (or any) waiting period on record. Three separate time periods exist and are routinely confused with a waiting period: (1) art. 3432(4), a non-signing heir who does not join must have been given at least 30 days' notice without objection (or be shown unlocatable); (2) art. 3434(C)(3): an action by a successor not recognized in the affidavit, asserted against a third party who acquired from a recognized successor, "is prescribed two years from the date of the recording of the affidavit"; this is a cutoff that ripens the record for purchasers, not a delay in the affidavit's effectiveness; (3) art. 3421(3), a succession qualifies as "small" regardless of value if the death occurred at least 20 years before the affidavit is executed; this is an eligibility route, not a waiting period, and the figure was reduced from 25 years to 20 years by Acts 2024, No. 90, §1.

Witnesses

Louisiana requires 2 disinterested witnesses to sign. Critical distinction: Louisiana does not use disinterested witnesses. The number of disinterested witnesses required is zero. Louisiana requires at least two affiants, and the statute affirmatively requires them to be interested parties, the opposite of the Texas/common-law model. Under La. C.C.P. art. 3432(A), "at least two persons, including the surviving spouse, if any, and one or more 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." Composition rules: (a) if there is a surviving spouse, the two signers must include the surviving spouse and at least one heir; (b) if there is no surviving spouse and there are multiple heirs, at least two heirs must sign; (c) if there is no surviving spouse and only one heir, that heir signs plus a second person who has actual knowledge of the matters stated in the affidavit. Only in that sole-heir case does a non-heir signer appear, and even then the qualification is personal knowledge, not disinterest. Art. 3433 uses the parallel rule for legatees. Formality is a sworn affidavit before a notary or other officer authorized to administer oaths, sworn under penalty of perjury. Not an authentic act requiring two attesting witnesses. Natural tutors and curators may sign for minors and interdicts without a separate court authorization. A document drafted with "two disinterested witnesses who are not heirs and have no interest in the estate," in the Texas style, does not satisfy art. 3432 and is defective.

This is where most people get stuck, because the people who know a family best are usually family. Candidates that work in practice: long-standing neighbors, members of the same congregation, former colleagues or a long-time employer, close family friends of decades’ standing, and in-laws who take nothing under intestacy, a son-in-law is often ideal.

Who cannot: any heir, the spouse of an heir who would benefit, any creditor of the estate, and anyone with a claim on the property.

Where to record it

Louisiana has parishes, not counties. Under La. C.C.P. art. 3434(C)(1), a multiple original or certified copy of the affidavit, plus any required attachments, "shall be recorded in the conveyance records of the parish where any immovable property described in the affidavit is situated." That is the parish where the property sits, not the parish of death and not the parish of the decedent's domicile. If the estate includes immovables in more than one parish, record in each such parish. The recording office is the Clerk of Court acting as ex officio Recorder of Conveyances in every parish; in Orleans Parish it is the Clerk of Civil District Court, Land Records Division. There is no requirement in arts. 3431–3434 to file the affidavit with, or open a proceeding in, any court. That is the entire point of the procedure ("judicial opening unnecessary").

If the deceased owned property in more than one county, record a copy in each. Recording is what makes the affidavit part of the public chain of title, an unrecorded one accomplishes nothing.

What goes in it

• Date of death of the deceased and the decedent's domicile at the time of death (art. 3432(1))
• A statement that the deceased died intestate (art. 3432(2)): or, for the testate variants, that the decedent died testate (arts. 3432.1, 3433)
• Marital status of the deceased, the location of the last residence, and the name and address of the surviving spouse, if any (art. 3432(3))
• Names, last known addresses, and relationship to the decedent of all heirs (or legatees under arts. 3432.1/3433) (art. 3432(4))
• For any heir who does not sign: a statement explaining the omission. That the heir could not be located, or that the heir was given at least 30 days' notice and did not object (art. 3432(4))
• A description of the property left by the deceased sufficient to identify it for purposes of transfer, designating each item as community or separate (art. 3432(5)), for immovables this means the legal description, not a street address
• The value of each item of property and the aggregate gross value of the estate as of the date of death (art. 3432(6))
• A statement showing the respective interests each heir inherits, and any usufruct in favor of the surviving spouse (art. 3432(7))
• An affirmation that the affiant heirs' signing of the affidavit constitutes acceptance of the succession (art. 3432(8))
• A statement that the affiants swear under penalty of perjury that the information in the affidavit is true, correct, and complete (art. 3432(9))
• Signatures of at least two qualifying affiants (surviving spouse plus heir; or two heirs; or sole heir plus a person with actual knowledge), duly sworn before a notary or other officer authorized to administer oaths
• For a Louisiana domiciliary who died testate (art. 3432.1): a copy of the testament attached, and an affirmation that the deceased died owning no immovable property in Louisiana
• For a non-Louisiana domiciliary who died testate (art. 3433(A)(8)): an attachment consisting of a copy of the testament and a certified copy of the probate order of the other jurisdiction
• Customary but not expressly required by art. 3432: a certified copy of the death certificate attached, and supporting proof of heirship (marriage certificates, birth certificates, divorce judgments, obituary), most parish recorders and every title underwriter expect the death certificate

Will a title company accept it?

Qualified yes. Louisiana title underwriters do accept a properly executed and recorded small succession affidavit, because art. 3434(C) expressly makes it a recordable, prima facie chain-of-title instrument for immovables. But acceptance is narrower and more conditional than in common-law states, and the judgment of possession remains the preferred and cleanest instrument. Underwriters typically insist on: (1) a certified copy of the death certificate; (2) independent verification that the heir list is complete: obituary, family tree/genealogical affidavit, marriage and divorce records, birth certificates, and specific inquiry into prior marriages and children born outside marriage; (3) confirmation that gross date-of-death value truly falls at or below $125,000 (gross, not net of the mortgage) or that the 20-year route of art. 3421(3) applies; (4) a correct statement of the surviving spouse's legal usufruct under La. C.C. art. 890 and of any forced heirship interest under La. C.C. art. 1493 (children under 24 or permanently incapacitated), usufruct/naked-ownership splits are the single most common reason a Louisiana affidavit is re-done; (5) evidence the 30-day notice under art. 3432(4) was actually given to each non-signing heir, with proof of mailing; (6) a mortgage/lien certificate and tax research, since the affidavit cuts off nothing as to creditors; (7) an owner's/seller's affidavit and often an indemnity. Many underwriters treat the two-year window in art. 3434(C)(3) as a risk period and are noticeably more comfortable insuring a sale once two years have run from recordation, or will require an heirs' indemnity in the interim. They will generally refuse the affidavit route and require a full judicial succession where: the decedent was a Louisiana domiciliary who died testate and owned Louisiana immovables (art. 3432.1 is unavailable by its own terms); gross value exceeds $125,000 and the death is under 20 years old; heirship is disputed or an heir is missing; there are minors or interdicts without a qualified tutor/curator; or the estate is insolvent or has significant creditors. For commercial or higher-value transactions, expect a judgment of possession to be required regardless of technical eligibility. (Statutory points above are verified from the Louisiana Legislature's official text; the underwriting-practice points reflect customary Louisiana title practice and were not verifiable from a primary source in this session.)

Acceptance is a judgment call, not an entitlement. Title companies more readily accept affidavits that are detailed, corroborated by other records, and have been on file for a while. If the family history is complicated or disputed, expect them to ask for a judicial determination of heirship instead, slower and more expensive, but conclusive.

Common mistakes in Louisiana

• Treating Louisiana like Texas, drafting a common-law 'Affidavit of Heirship' signed by two disinterested witnesses with no interest in the estate. Louisiana has no such instrument; art. 3432 requires the surviving spouse and/or heirs to be the affiants. A disinterested-witness affidavit is defective on its face.
• Stating or believing that the recorded affidavit conveys title. It does not. La. C.C. art. 935 already vested ownership at death, and art. 3434(C)(2) gives the affidavit only prima facie evidentiary weight. Deeds and mortgages drafted on the premise that the affidavit was the conveyance create a defect.
• Using the affidavit for a Louisiana-domiciled decedent who died testate and owned Louisiana immovable property. Art. 3432.1 requires an affirmation that the decedent owned no Louisiana immovable property, and art. 3431(A)(2) permits the waiver route only where there is no Louisiana immovable. A will plus Louisiana real estate means a judicial succession.
• Recording in the wrong parish, filing in the parish of death or the parish of the decedent's domicile instead of the parish where the immovable is situated, as art. 3434(C)(1) requires; or recording in only one parish when the decedent owned immovables in several.
• Blowing the value threshold by using NET rather than gross value, or by valuing as of the affidavit date rather than the date of death. Art. 3421(1) is a $125,000 gross value test measured as of date of death; mortgages and debts are not deducted.
• Citing the outdated 25-year rule. Acts 2024, No. 90, §1 reduced the unlimited-value route in art. 3421(3) to deaths occurring at least 20 years before execution of the affidavit. Published content and older forms still say 25 years.
• Only one affiant signing, or two affiants who are neither the surviving spouse nor heirs. The sole-heir-plus-knowledgeable-person exception in art. 3432 is narrow and is frequently misapplied to estates that actually have multiple heirs.
• Omitting an heir, or including a non-signing heir without the required statement under art. 3432(4) explaining that the heir could not be located or was given 30 days' notice without objection, and having no proof of that notice when the title examiner asks.
• Misstating the surviving spouse's La. C.C. art. 890 legal usufruct over the decedent's community share, or ignoring forced heirship under La. C.C. art. 1493, so that the affidavit recites the wrong fractional interests and the naked ownership/usufruct split is wrong on the record.
• Mischaracterizing property as separate when it is community (or vice versa), art. 3432(5) requires the designation, and a wrong call misstates whose interest is being recognized.
• A property description insufficient to identify the immovable for purposes of transfer, using a municipal address or tax parcel number instead of the full legal description, so the clerk indexes it incorrectly and it never ties into the chain of title.
• Failing to attach the certified copy of the foreign probate order (and a copy of the testament) for an out-of-state testate decedent under art. 3433(A)(8), or attaching an uncertified copy.
• Omitting the sworn-under-penalty-of-perjury statement required by art. 3432(9), or having the affidavit merely signed rather than sworn before an officer authorized to administer oaths.
• Assuming the affidavit clears creditors. It does not; art. 3434(B) only protects the person who pays or delivers the property, and the estate's debts survive.
• Assuming the two-year period in art. 3434(C)(3) protects the heirs themselves. It only bars an unrecognized successor's action against a third party who acquired from a recognized successor. It does not quiet title as among family members.
• Failing to have a natural tutor or curator sign for a minor or interdict heir, or conversely opening an unnecessary court proceeding for that purpose when arts. 3432/3433 permit it without one.

Sources

• legis.la.gov
• legis.la.gov
• legis.la.gov
• legis.la.gov
• legis.la.gov
• legis.la.gov
• legis.la.gov
• legis.la.gov