Code II Flashcards
Security under 890 Usufruct
none needed, unless:
(1) naked owner is not a child of the usufructuary (stepkid), OR
(2) naked owner is a forced heir
Renunciation Requirements
(1) express, and
(2) in writing
(acceptance is presumed)
Types of Acceptance
Formal (expressly accepts in writing or assumes quality of successor in judicial proceedings)
Informal (successor does some act that clearly implies his intention to accept)
Executor’s Authority
CAN:
(a) allocate specific assets to satisfy a legacy expressed in terms of value or quantum, including fractions
(b) allocate a legacy to one or more charities and choose the charities
CANNOT: pick which kid gets money, or how much each kid gets
Validity of Foreign Testament in LA
MUST be in writing, and made in conformity with one of the following:
1) law of LA
2) law of the state of making at the time of making
3) law of the testator’s domiciliary state or where testator died
4) IMMOVABLES - situs rule
What needs to be done to place a legatee in possession of an interest in immovable property in LA but given by a TX will?
a testament admitted to probate outside of LA is governed by the Uniform Probate Law
” may be allowed and recorded in the proper court in LA in the parish where testator left part of estate
Procedure:
1) executor must file the will with petition for probate in correct parish
2) same proceedings must be had as would be required for regular probate of a will
3) court then admits will for probate and will have the same force and effect in LA
*CANNOT JUST RECORD COPY OF TX PROBATE TO TRANSFER POSSESSION
Preclusion of LA Forced Heirship Laws for Foreign Testaments with Immovable Property in LA?
generally - if immovable property is in LA, and there are forced heirs, LA law applies
Exception: law of forced heirship will not apply if both:
1) decedent was domiciled outside of LA, and
2) decedent had no forced heirs domiciled in LA at time of death
Proving Lack of Testamentary Capacity
Standard: clear and convincing evidence
Proof: must be able to show that at the time the person made their will, they were not able to comprehend generally the nature and consequences of the disposition she was making
Late Creditor
must have a claim pursuant to court order (secured creditor)
Satisfaction order:
1) remaining estate assets
2) distributed assets
3) unsecured creditors
Acceptance by Creditor on behalf of Renouncing Successor
need JUDICIAL AUTHORIZATION
must prove:
1) renunciation was in prejudice of creditor’s rights
2) renunciation caused injury (rendered or exacerbated creditor’s insolvency)
2) successor renounced fraudulently or with intent to fraudulently deprive
Joint vs. Separate Legacies
Joint = no shares assigned (to Bob and Steven)
separate = shares assigned (1/2 to Bob, 1/2 to Steven)
Form of Disinherison
express
in form prescribed for testaments
makes forced heir identifiable
note reason, facts, circumstances that constitute cause for disinherison
Interested Witness to Testament: Spouse of Legatee
spouse of a legatee cannot be a witness to a testament
violation does not invalidate testament, but does invalidate legacy to legatee (spouse’s spouse)
however, if legatee would still inherit under intestacy, can get the lesser of the two shares
**ONLY invalidates legacies, not “other testamentary provisions” (ie can still be executor)
What happens if a testamentary trust names a trustee that is invalid (ie: a business)?
court will name a trustee instead
Donative Renunciation
proper form for acceptance and proper form for donation
donation inter vivo of a corporeal movable may be made by delivery of the thing to the donee
acceptance of a DIV may be made by corporeal possession
