Title Question for pros

I wanted to get some feedback from anyone willing to post on the following title problem. I will use the names John and Joan Smith, H/W as examples. Any information will be greatly appreciated.

 

John and Joan Smith, H/W acquired their interest in and to a 2 acre tract in Louisiana back in the early 1990s. Joan Smith passes away and leaves no will or no adminstration of her estate. This interest was not conveyed into Joint Tenancy so it is assumed the interest was conveyed to the husband and wife as Tenants in Common unless I'm missing something. John and Joan Smith had 4 children together that are all still living to this day. A lease was taken covering John's interest in 2008 and I'm guessing I would need the 4 children to ratify this lease if they acquired an interest through their late mother's death. I'm familiar with the intestate succession laws in Oklahoma but not in Louisiana. Does anyone know if her interest automatically reverts back to her surviving spouse or do the kids inherit in equal shares her portion of the interest in and to this tract of land? Thank you for any help.

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Permalink Reply by Susie Brown on May 14, 2011 at 9:11
Have you done a succession? If so this should have been addressed then. In Louisiana,  each spouse owns 1/2 of the estate. At death, the surviving spouse get 1/2 of the deceased's estate with the other half going to surviving children. Surviving spouse get usufruct of the estate until death. There are exceptions to this, so you really need advice from an licensed LA estate attorney
Permalink Reply by Scott on May 14, 2011 at 9:17
To my knowledge, no succession has taken place. I had the surviving spouse execute an affidavit of death and heirship. This document informed me that the decedent left no will nor did she leave an administration of her estate. I've check title on this interest and I have found nothing that would indicate a succession has taken place either.
Permalink Reply by Susie Brown on May 14, 2011 at 10:03

Are you buying this property? You need an legal opinion from  a LA licensed attorney who understands LA heirship laws

Permalink Reply by Sherry Mobley on May 14, 2011 at 12:45
I live in Louisiana. Louisiana is a community property state. If you two acquired this property together it is community property. With her death you do get half and the children get to split her half. But as Susie said as long as you are alive you should have usufruct of this property. Unless this would have been inheritance property or property she owned before you, then that would be a different story. Until the time of your death you have the right to do whatever you want to with what you and your wife owned. I do estate sales and I see a lot of this. True if you opened a succession , which I dont think you have to unless there are minor children., things may be different. I always advise everyone do a POWER of ATTORNEY, do a WILL. It saves everyone so much trouble, headache and heartache. Also appoint an Executor of your Will.  
Permalink Reply by Joe Aldridge on May 14, 2011 at 14:00
Sherry, I just went to a seminar that dealt with inheritance. One of the things that was stressed at this meeting is to NOT do a power of attorney. According to this guy once you sign a PA it's almost impossible to retract and there are cases where the holder of the PA has mortgaged  or sold the owners property unbeknownst (sp?) of the individual. The second thing that this person said was that you should not do a will in Louisiana. If you do then for the transfer to be legal then it must go to succession and through probate. His solution is to do a TOD (Transfer on Death)  which amounts to a letter or form that gives the property to someone at death. This plus a death certificate can be recorded with the Clerk of Court in the Parish where the property is located and thus transfers the property without going to probate. This is what we were told in this seminar. Any input you are anyone else has on this subject would be GREATLY appreciated. This is an area that I have little to no experience in. I still have to sit down with my attorney and discuss this so I'm open to suggestions.
Permalink Reply by Two Dogs, Pirate on May 14, 2011 at 14:20
Joe, I have seen many Power of Attorney filed in Louisiana that grant powers to sell, mortgage or do whatever with the property but if it doesn't grant the power to grant an Oil, Gas and Mineral Lease, then I hold it as a useless document for granting an OGML.
Permalink Reply by Joe Aldridge on May 14, 2011 at 14:57

TD,

I would agree with you on leasing through a power of attorney. If leasing is not stated it would not be covered. I'm more concerned about what Sherry said in her post. Since I went to this seminar I'm really questioning exactly what is right and best as far as inheritance is concerned. I know this is taking the thread in a different direction but its something that I need input on and I'm hoping that Sherry or someone will see my earlier post and respond. 

Permalink Reply by DO Analyst on May 20, 2011 at 5:55
As an analyst, I have seen many abuses of the "standard" POA forms that are out there.  I agree granting POA is not recommended, but if one must do this for whatever reason, make sure that that POA strictly limits the powers, when it comes to limiting powers in a POA form, you can never repeat yourself too much.
Permalink Reply by Two Dogs, Pirate on May 14, 2011 at 13:09
The children need to sign Ratifications of the lease.
Permalink Reply by Scott on May 15, 2011 at 13:46

Thanks everyone for the feedback.

 

Permalink Reply by Sherry Mobley on May 15, 2011 at 14:58
Joe, I do not know anything about POA and leasing. Only about real estate. My husbands Father was dying in OkC and we had to go get a POA done . As soon as he passed away the POA expired. In Louisiana , it is all different. My husband is 20 years retired Army and 100 % VA Disabled. They advised us for him to give me POA. And to draw up a will because he had grown children from a previous marriage. He also had property he had acquired before he met and married me. That property was not community propert. Only property purchased together during a marriage and any other assets is considered community property. The POA was because he is disabled. They told me inheritance property is not comm. prop. I know absolutely nothing about any of this in reguards to land, with oil or gas leases. Just the basics. We had my husband draw up a will to only protect my interests in our assets. He left everything to me in case he dies before me.  Because he has children. If I die after him then everything goes to them, that was my choice, because I have no living heirs. In all actually in the state of La. you can disinherit a child at the age of 23. Strange, huh. My mother died when I was 2 yrs old, I am now 57, my Dad had to open a succession because he had  a minor child. I inherited her half. The property was being sold and he had to put my part up for me. But again I only know the basics, nothing about leasing. I did have a Clerk of Courts lady tell me Comm Property is hard to claim, unless you have  a lot of things in writing. In La. if you get a divorce when it goes to Court you are advised to split everything fifty fifty. Or you have to get a lawyer and fight for your half. So I guess things are different now.
Permalink Reply by Joe Aldridge on May 16, 2011 at 1:07

Thanks Sherry,

Every little bit of information helps. I'm really new to the concept of estate planning. I've always just believed that whatever the law said was what was going to happen. As it seems to turn out there are other way of doing things. Some seem to be better that others.  Thanks for your input. 

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