4. Code II: Successions and Donations Flashcards
Succession
Succession is the transmission of the estate of a deceased person to his successor.
An estate includes the property, rights, and obligations of the decedent, as well as the charges (debts/expenses) accruing after his death.
Modes of Inheritance
- in his own right
- by representation
- by transmission
Inheritance by Transmission
heirs taking the succession rights of a successor who died after the decedent but before exercising the right to accept or renounce
Intestate Succession
occurs when:
(1) the decedent leaves no will
(2) the will is invalid (in whole or part) OR
(3) the will does not dispose of all of the property
Classes of Heirs
(1) descendants;
(2) ascendants (parents, siblings, and siblings’ descendants);
(3) spouse not judicially separated; and
(4) collaterals
Absent representation, a higher class will exclude a lower class. Within a class, the closest in degree will exclude those further in degree.
Inheritance of Separate Property by Intestacy: Order
- Descendants
- Parents and Siblings (and siblings descendants)
- Spouse not judicially separated
- more remote ASCENDANTS
- more remote COLLATERALS
- the state of LA
Inheritance of Separate Property by Intestacy: Descendants
If the deceased has descendants, they inherit to the exclusion of other heirs.
Intestate Inheritance of Separate Property by Intestacy: NO Descendants
If the deceased has no descendants, then his parents and siblings (and descendants of siblings) inherit to the exclusion of others.
Parents have a joint and successive usufruct and the siblings have naked ownership. If there is no parent surviving, the entire estate goes to the siblings of the decedent to the exclusion of all others.
Inheritance of Separate Property: Half Siblings and Step Siblings
For half-siblings, the estate will be divided into maternal and paternal halves.
Step-siblings inherit nothing.
Inheritance of Separate Property: Surviving Spouse not Judicially Separated
If the deceased has no surviving descendants, parents, or siblings, the surviving spouse, not judicially separated, inherits to the exclusion of other ascendants and collaterals.
Intestate Inheritance of Community Property: Surviving Spouse’s Half
If one spouse dies, the surviving spouse has full ownership of her 1⁄2 share of all community property.
Intestate Inheritance of Community Property: Decedent’s Half
- If there are descendants, the decedent’s 1⁄2 interest in community property goes to them subject to a usufruct granted by law in favor of the surviving spouse.
- If the decedent has no descendants, the surviving spouse succeeds to the decedent’s 1⁄2 interest in the community property.
Surviving Spouse’s Usufruct Termination
The usufruct terminates upon death or when the surviving spouse remarries, whichever occurs first.
Inheritance Rights of Adopted Children
- can inherit from both adopted AND bio fam
- only adopted fam can inherit from adopted child
- foster kids get nothing
Security in Usufruct
may be requested only by naked owner ONLY if naked owner is NOT the child of the surviving spouse OR is a forced heir
Representation
allows one who would not inherit in his own right to slide into the shoes of another
only applies when the decedent:
(1) has a predeceased
(2) descendant OR sibling
(3) who has descendants of their own
inheritance occurs by ROOTS
Quasi-Representation
usually yields same result if sibling or descendant of the decedent RENOUNCES or is declared UNWORTHY and has descendants of his own
Seizin
Succession rights vest at the moment of the decedent’s death, and therefore, the successor acquires ownership (or is “seized”) of the decedent’s property immediately upon the decedent’s death.
“le mort saizet le vie”
Effect of Seizin
the rights of the successor are transmitted to his successors at his death, regardless if they accepted the rights
Unworthiness Grounds
- convicted of a crime involving intentional killing or attempted killing of the decedent
- judicially determined to have participated in the intentional, unjustified killing or attempted killing of the decedent
not automatic — must be pronounced and done in succession proceedings
Effect of Unworthiness
unworthy heir does not succeed
treated as predeceasing the decedent
Standing for Action Declaring Unworthiness
must be brought by person who would succeed in place of or in concurrence with the unworthy successor
must be brought in succession proceedings
Defenses for Unworthiness
- reconciliation
- forgiveness
Successor’s Options
successor may:
- accept
- renounce
- accept in part and renounce in part
Reconciliation
- tacit reconciliation – infer reconciliation if the decedent does not disinherit the unworthy heir, only creates evidence of reconciliation
- other evidence: still hang out together; invite over for dinner; attend important life events.
Note: the longer time goes on and the decedent doesn’t disinherit, strengthens the argument for tacit reconciliation
Prerequisites to Acceptance/ Renunciation
- decedent must be DEAD at time of acceptance/ renunciation
- successor must know of:
- the death of the decedent
- that he has rights as a successor
premature acceptance/ renunciation = absolutely null
Acceptance
A successor is presumed to accept succession rights.
- minor = deemed to accept but legal rep can renounce when expressly authorized by court
- can be formal or informal
Successor’s Liability
Universal successors are liable for estate debts, to the extent of the value of the property received by them.
An intestate heir is liable to the creditor for the payment of the debt in proportion to the part he received in the succession.
Estate Debts
Estate debts include debts of the decedent and administration expenses.
Payment of Estate Debts - Creditor Rule
Renunciation
AFTER decedents death and AFTER successor knows of the death and his rights to succession
must be EXPRESS and in WRITING
Effects of Renunciation
When an intestate successor renounces, his rights accrete to the person who would have succeeded to them if the successor had predeceased the decedent.
Formal Acceptance
express and in writing or in a judicial proceeding
Informal Acceptance
by action implying an intent to accept
Types of Donations
- donations inter vivos
- donations mortis causa
Donations Inter Vivos
K by which donor gratuitously divests himself
AT PRESENT
AND IRREVOCABLY
of the thing given
in favor of donee
who accepts the thing
Donations Mortis Causa
must be housed in a valid testament or it is absolutely null
act that takes effect AT DEATH of the donor whereby donor divests himself of all or part of his property
REVOCABLE DURING HIS LIFETIME
Requirements for a Valid Donation
- Capacity
- No vices
- form AND
- substantive limits respected
Substantive Limits
If a donation attempts to include future property, the portion of the donation that concerns future property is null.
For a donation mortis causa, it can only be made in a testament authorized by law.
Capacity
presumed
need:
1. capacity to receive (DONEE)
2. capacity to give (DONOR)
Capacity to Receive: When?
- DIV = at time of acceptance
- DMC = at death of testator
Capacity to Receive
donee must be in existence
or in utero and later born alive
Capacity to Give: When?
- DIV = when donor makes donation
- DMC = when testator executes will
Capacity to Give: Age
- under 16 = only give to spouse or child, cant have a spouse under new laws
- 16-17 = DMC to anyone/ DIV to spouse or child
- 18 anything
Capacity to Give: Mental Condition
must comprehend generally the nature and consequences of the disposition
challenger bears BOP by clear and convincing evidence
Capacity to Give: Interdicts
- full = no capacity to give
- limited = depends on judgment of limited interdiction
Vices of Donations
- fraud
- duress
- undue influence
BOP to Prove Vices of Donations
BOP on challenger clear and convincing
UNLESS unrelated and relationship of confidence then preponderance
Fraud
misrepresentation or suppression of the truth
with the intention to either gain an unjust advantage for one party
OR to cause a loss or inconvenience to the other
Duress
reasonable fear of unjust and considerable injury
to a party’s person,
property, or
reputation
Undue Influence
when a donation is a product of influence
by the donee or another person
that so impaired the volition of the donor
so as to substitute the volition of the donee or other person
for the volition of the donor
Effect of Vice of Consent
If a donation is tainted by a vice of consent, the donation is null and severed from the rest of the act.
One who commits a vice may not serve as an executor, trustee, attorney, or other fiduciary capacity pursuant to a designation as such in a donation or testament.
One who commits a vice may not serve as . . .
an executor, trustee, attorney, or other fiduciary capacity pursuant to a designation as such in a donation or testament.
(1) Personal Matters/ Decisions of the Donee – prohibition of marriage
(2) Patrimonial Matters: interfere with donee’s free exercise of rights
(3) Penal Clauses: if you challenge this donation you lose the donation
Examples of null conditions
Prohibited Substitutions
(1) property not in trust
(2) given in full ownership
(3) by donor to first donee (institute)
(4) who must preserve and deliver it at his DEATH
(5) to the second donee (substitute)
This prohibited substitution is null as to both donee and will lapse but the rest of the testament is valid.