CODE II Flashcards
Universal Successor –
represents decedent and succeeds to all his rights and charges; heirs, general and universal legatees
Particular successor –
succeeds only to certain rights to a thing bequeathed to him; particular legacy in will, transferees
Conflicts –
movables are governed by state where decedent was domiciled at death; LA law governs LA immovable
3 ways to inherit:
in his own right, representation, transmission
Capacity to inherit –
need only be in existence at time of decedent’s death; includes those conceived and are later born alive
Order of Inheritance of Separate Property by Intestacy
- Descendants
- Parents and siblings - parents have a joint and successive usufruct over the siblings naked ownership
- Surviving spouse
- More remote ascendants
- More remote collaterals
Ascendants inherit immovable property when
they donate an immovable to the descendant, and that descendant dies without posterity and has not disposed of the immovable; if it has been alienated on a credit basis and the full price is not yet due, the ascendant has a right to receive the proceeds; the ascendant also enjoys any conditions imposed
Inheritance of Community Property by Intestacy – Order
- Surviving spouse
- Decedent spouse’s half of community property
a. Children or other descendants – goes to them subject to usufruct granted by law in favor of surviving spouse
i. Renunciation – child’s descendants inherit rather than the surviving spouse - Art. 890 usufruct to surviving spouse – applies only in intestate situation and it may be deprived of in will (special security rules)
a. Step children – applies even when the children who inherit are not children of the marriage
b. Duration – continues until surviving spouse dies or remarries
Formal acknowledgement –
by declaration or signing of birth certificate; child must not be filiated, mother must concur
i. For presumption to work, father must be married to mother, if not it only works in favor of the child
Paternity Action
suit filed by child to establish his biological father, even if presumed to be child of another man
Paternity action –
BOP If father still living
preponderance
Paternity action –
BOP if father is deceased,
clear and convincing
one year from the death of the alleged father
Avowal action –
suit filed by biological father to establish paternity even if child is presumed child of another man
BOP for Avowal action
Must prove by preponderance
Timing of avowal action
1. Presumed child of another man
one year of birth of child; unless the mother in bad faith deceived the father, then one year from the day the father knew or should have known of his paternity or within 10 years of the birth of the child; in any event, must be filed within one year of child’s death
Timing of avowal action
2. Not presumed child of another man
can be filed at any time, but no later than 1 year from childs death
Representation
1. Generally –
descendants of children or siblings of the decedent who would take, but have predeceased the decedent may take by representation (stepping into the shoes of their deceased ancestor)
Representation In collateral line,
only descendants of brothers and sisters may inherit (whole or half-blood)
Seizin
succession occurs at the death of the decedent, a successor acquires ownership, or is “seized,” of the decedent’s property immediately upon the decedent’s death
Seizin
-Transmission –
rights transmitted at death regardless of whether he accepted the rights
Seizin
-Possession –
transferred at death; particular successors may commence a new possession for purposes of acquisitive prescription
Unworthiness
heir or legatee is judicially declared unworthy (it is not automatic) and he is deprived of right to inherit
Action for unworthiness may only be brought by
a person who would have succeeded in place of or in concurrence with the unworthy successor, or by one who claims through such a person (if a minor, any family member or court may bring action)
Grounds for unworthiness –
convicted or judicially determined of intentional, unjustified, or attempted killing of decedent (no pardons)
Timing of unworthiness action–
brought in succession proceeding or 5 years from date of death (intestate) or probate or filing of testament (testate)
Effects of unworthiness–
as if unworthy successor predeceased the decedent (also loses right to claim as a forced heir, or to serve as executor)
Obligations of unworthy successor –
unworthy successor must return or account for all of the property he has or had of the decedent’s succession
Informal Acceptance–
act that implies intent to accept; if without knowledge or intention not acceptance; must be act of ownership
Renunciation as acceptance –
if made for a price or if it is gratuitous but made in favor of another to whom the inheritance would not otherwise accrete
Effect of acceptance –
successor is liable for debts of estate, but limited to value of the property he actually receives
Form for Renunciation –
must be express and in writing (does not have to be by authentic act) made after the death of the decedent and only when the successor knows of the death of the person and that he has rights as a successor
- doesnt have to be dated
Effect of renunciation –
accretion flows as if renouncing heir predeceased the decedent (testate – look to governing provision, if any)
Attempted renunciation –
an attempt to renounce a share in favor of someone outside the designated order of accretion is not a true renunciation, instead one is considered as having accepted the succession and then having donated the share to the intended designee (since it is a donation, it must be done by authentic act)
Donation Inter Vivos Def–
between living persons; contract by which a donor divests himself, at present and irrevocably, of the thing given, in favor of a donee who accepts the thing
Donation Mortis causa –
testament; act to take effect at the death of the donor where he divests himself of all or part of his property and is revocable during his lifetime
Capacity of donor to make donations IV must exist
when the donor makes the donation
Capacity of donor to make donations MC must exist
when testament is executed
donation of people under 16:
no MC or IV, except to spouse or children
donation of people 16-18,
may execute MC, but only IV to spouse or children
person challenging capacity for donation must prove by
clear and convincing that the donor lacked capacity at the proper time
Capacity of Full Interdict to donate –
lacks capacity to make a juridical act; lacks capacity to make or revoke any donation
rebuttable by preponderance
Capacity of Limited interdict to donate -
lacks capacity to make juridical act pertaining to certain property under the care of a curator
- Property under curator – prohibited from IV, for MC interdict is presumed to lack capacity
- Property not under curator – presumed to have capacity to make IV and MC
rebuttable by preponderance
Vices of capacity for donation
-i. Fraud or duress –
null
Vices of capacity donation
ii. Under influence –
donation is null when 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 the other person for volition of the donor
BOP for challenging capacity –
must prove by clear and convincing; however if a relationship of confidence existed at the time the donation was made, then the challenger need only prove vice by preponderance; but if the alleged wrong doer is related by affinity, consanguinity, or adoption, the standard remains clear and convincing
Conflicts – capacity is decided according to the law
where donor was domiciled at the time of making or at time of death
child conceived after the father is deceased is permitted to inherit from the father provided:
1) the mother is the surviving spouse,
2) the father specifically authorized in writing the use of his gametes, and
3) the child is born within 3 years of death of father
Prohibited substitutions –
a disposition not in trust to a first donee (institute) who is charged to preserve a thing and deliver it at his death to a second donee (substitute) is null with regard to both the institute and substitute
Vulgar substitutions –
a gift in full ownership merely providing that in the event a first donee cannot take the gift, the second donee will take it, then it is valid
Survivorship Clause –
a testator may require a donee to survive him for a period up to 6 months
right of first donee is suspended until he survives for the stipulated period, if he does, then he is considered to have succeeded from the moment of the decedents death, same for the second donee
Conflicts for form requirements of testaments –
valid as to form if it is in writing and with either: 1) law of LA;
2) law of the state of making at the time of making;
3) law of the state in which the testator was domiciled at time of making or at the time of his death
Olographic testaments –
1) Hand written –entirely hand written in handwriting of the testator; any changes (additions or deletions) may only be given effect if made by the hand of the testator (2 witnesses must identify the testator’s handwriting)
2) Signature – should be at the end of the will; but if anything is written by the testator after his signature the will is not invalid, and the court may consider the writing as part of the testament (doesn’t have to be name, can be how known)
3) Date – must be dated; date can appear anywhere on the testament; uncertain date will not invalidate the will as long as it is reasonably ascertainable from information in the will or by extrinsic evidence
Qualities of testator for Notorial Testament –
must be able to read and write and sign his name for the standard notarial will
Form of a notorial testament
1) Writing – may be written, printed, or typed 2) Date – must be dated; can be located anywhere; need not be made by the testator, nor required to be dated with notary
3) Signed at the end of the testament and each page in the presence of a notary and two witnesses.
3) Attestation clause – declaration made by the notary and witnesses at the end of the will that states that the testator declared the will was his and signed the will in their presence; essential that the notary and 2 witnesses sign the clause and do so in the presence of the testator and each other
Competency of witnesses – person cannot be a witness to a testament if
insane, blind, or unable to sign his name; must be over 15
additions or deletions on oligraphic -
- may only be given effect if made by the hand of the testator (2 witnesses must identify the testator’s handwriting)
- dont need to be signed or dated
- anything after signature will be considered by the ct, in its discretion, as part of the testament
Legatee or spouse of legatee as witness –
legacy to the witness or the spouse of a witness, as appropriate is invalid, although the testament itself may be valid
- When entitled to inherit as an intestate successor, they may inherit the lessor of his intestate share or legacy
Universal legacy –
testator gives to one or more persons the whole of the property, or balance or residue or all property left after particular legacies; all residuary legacies are universal but not all universal legacies are residual
General legacy:
a. Fraction or certain proportion of estate
b. Fraction or certain proportion of certain property classifications – disposition of all or a fraction of one of the following categories: separate or community; movable or immovable; corporeal or incorporeal
when a general legacy is phrased as residue or balance of estate without specifying that residue or balance,
it shall be treated as a universal legacy
Particular legacy –
neither general or universal; usually for specific property
Joint bequests –
a thing is left to two or more persons without an assignment of parts or shares so that legatees get equal parts
if a joint legacy lapses -
the share of that legatee accretes to the other joint legatees ratably
when a joint legatee predeceases the testator,
the surviving joint legatees take the entire bequest in full ownership;
if all joint legatees survive the testator, and then one of the joint legatees dies,
the legacy does not lapse; he inherits and transmits his share to his successors (it does not go to the other joint legatees)
Testamentary accretion –
takes place by law when a legacy lapses if no governing testamentary provision
Grounds for accretion–
1) legatee predeceases testator;
2) legatee is incapable of receiving at death of testator (lack capacity);
3) legatee is declared unworthy;
4) legacy is renounced (lapse is only to extent of renunciation);
5) legacy is declared invalid (to notary, witness/spouse of witness)
6) legacy is subject to suspensive condition that can’t be fulfilled or legatee dies before fulfilling
7) legacy is declared null (fraud, duress, undue influence)
when a particular or general legacy lapses, it goes to
the successor who would have received the property under the testament had the legacy not been made
Most favored class rule
if the legatee whose legacy lapses is a child or sibling of the testator, or a descendant of a child or sibling, accretion takes place in favor of descendants of the legatee, joint or otherwise
order of accretion
1) provision in testament
2) most favored class
3) joint legatee
4) universal
5) intestate
a legacy is extinguished when
the property that is the object of the legacy is lost or destroyed before the death of the testator
if Extinguished – legatee is entitled to
any property that remains, or uncollected insurance proceeds, and right of action
Transformed –
not extinguished if transferred into a similar object without an act of the testator
Priorities in disbursing bequests when succession not sufficient to discharge all bequests– look first to testament for express declaration, if not, then follow these rules
i. Legacies of specific things first
ii. Legatees of groups and collections of things
iii. Cash legacies are distributed on a pro rata basis, unless declare remunerative (which has preference)
Successors are entitled to fruits and products attributable to the object of the legacy from
the date of death of the testator
legacies of money is entitled to interest at a reasonable rate beginning
1 year after testators death
generally a testator may revoke his will
at any time; cannot renounce right to revoke
ways to revoke a will
a. Clause in a new will - must be in valid will form
b. Destroyed will - destruction must be complete and total either by the testator or someone at his direction
c. Authentic act - cannot be used to add or modify, only revoke
d. Signed writing - entirely written and signed (no date needed) by the testator that clearly expresses intent to revoke
if original copy of a will cannot be found after testators death
then it is presumed that the testator destroyed the will with intent to revoke it; only applies if testament was readily accessible to him prior to death
BOP to rebut presumption=C&C Evidence that it was revoked
Can probate a lost or accidentally destroyed will if you can prove
decedent made a valid will; the contents of the testament; and the testament was not revoked
destruction of one of multiple original wills:
gives rise that all are revoked
Revocation of a legacy or testamentary provision
a. By declaring in one of the forms prescribed for testaments
b. Making subsequent incompatible testamentary dispositions
c. Making subsequent inter vivos disposition (sale or donation) of the thing and not reacquiring it (tacit revocation); must be in proper form and accepted by donee during the life of the donor
d. Making a signed writing on the testament itself (no date needed)
e. Divorce after execution of the testament and at the time of death of testator, unless testator provides to the contrary
Olographic – additions or deletions on the testament may revoke if
the testator himself does these acts, otherwise they have no effect; drawing lines or striking provisions may revoke if done by testator (signed; no date need)
Notarial – to revoke the lines must be
signed by the testator (no date)
Notorial - to add or to revise a disposition,
the charge must be both signed and dated
After acquired property – dispositions interpreted to refer to the property
owned by the testator at death
Contradictory provisions –
one written last will prevail
Legacy to creditor –
not applied toward the satisfaction of debt unless testator clearly indicates
Forced portion –
portion of the estate reserved for all forced heirs collectively; 1/4 if 1 FH, 1/2 if 2 or more FH
Legitime –
forced portion of a particular forced heir
Disinherison –
for just cause (must occur prior to execution of instrument disinheriting) a decedent may disinherit a forced heir.
ground for disinherison (just cause)
1) strike parent
2) cruel treatment/grievous injury
3) attempted murder of parent
4) accused parent of capital offense w/o reason
5) violence or coercion to hinder testament
6) minor marries w/o consent
7) child convicted of capital crime
8) no communication for 2 years
form for disinherison and what must be included
1) must be in a form prescribed for wills and
2) person to be disinherited must be named for identifiable from instrument that disinherits him
3) must state the reason for disinherison which are presumed to be true but can be overcome
defenses to disenherison- person who is disinherited may overcome the disinherison by proving
a. Proving by preponderance that grounds are not true; testimony of heir alone will not suffice
b. Reconciliation with testator after the occurrence of the reason, facts, or circumstances expressed in the instrument; proved by clear and convincing; writing signed by testator is good enough
c. Because of age or mental capacity heir was not capable of understanding behavior; behavior was unintentional; behavior was justified; proved by Clear and convincing evidence that is supported by testimony
Forced heirs
Descendants of the 1st degree who are 23 years of age or younger, or who are permanently incapable of taking care of their person or administering their estate due to a mental incapacity or physical infirmity.
- Grandchildren – not in their own right, but by representation
permanently incapable of taking care of their person or administering their estate due to a mental incapacity or physical infirmity include those who
have an inherited, incurable condition that may render them permanently incapable of taking care of themselves or their property in the future.
Inherited incurable disease –
descendant of any age who have an inherited incurable disease or condition that may render them incapable of caring for their person or administering their estate in the future(may be treatable)
grandchildren are considered forced heirs when
i. Predeceased parent – if the parent would have been younger than 24 at the time of decedent’s death
ii. Disabled grandchildren – no matter the age of the predeceased parent at the time of death
calculation of the legitime of forced heir(s)
divide the forced portion by number of qualified FHs at the time of decedent’s death (1 = 1/4; 2+ = 1/2)
i. If a FH by representation, then only gets that share (by root) not by head
Greenlaw Rule –
if the fraction that would otherwise be used to calculate the FH’s legitime is greater than the fraction to calculate what the FH would be entitled to inherit under intestate law, the legitime is reduced to the lesser of the two
If a FH heir renounces, disinherited or declared unworthy, his legitime
becomes disposable, the forced portion is reduced
Rights of FH:
a. Demand reduction
b. Demand collation
Surviving spouse usufruct (Art. 890, only intestate) –
can be dispensed with in will or by adverse disposition; terminates upon remarriage; special rules for security to the naked owner (for FH – must be to the extent of the legitime)
Testamentary usufruct to surviving spouse –
testator granted usufruct by will over both separate and community property including the forced portion
Duration of testamentary surviving spouse usufruct –
granted for life and does not necessarily terminate at remarriage (can be set for a term)
Security for testamentary surviving spouse usufruct–
not needed unless testator expressly requires it
1. Security may be requested by the FH if it affects his legitime and he is not child of surviving spouse
Forced portion in trust – can be placed in trust, can have payments as necessary for
health, education, support, etc.…
Reduction
any donation that exceeds the amount a person may dispose to the prejudice of FHs may be reduced to the extent necessary to eliminate the impingement
when is reduction action brought
may only be brought after the death of the donor
who may bring reduction action
personal claim of FH and may only be brought by them or their successors; creditors cannot exercise
Collation
– return of goods to the mass of the succession property that a child or grandchild received in advance of his share so that the property can be divided with the other effects of the succession; when a parent favors a particular child with various gifts during the parent’s lifetime, the child should return the property or its equivalent to the parent’s succession to be distributed among all kids
collation is always presumed unless it has been expressly forbidden (waiver)
i. Waiver –
decedent (donor) may stipulate that what he gave was intended as an extra portion not subject to collation; but the language must be unequivocal in one of the following:
- In act itself – made in the act of disposition
- In subsequent authentic act – before a notary and 2 witnesses
- Dispensation made by will – dispense with collation as to gifts made before and after date of will
Who may demand collation –
descendants of the first degree who qualify as FH at the time of decedent’s death
i. Only a child; not a grandchild for bar purposes
Whom it collation due –
made only to the succession of the donor-decedent
collation applies only to
inter vivos gifts made within 3 years of donor’s death, valued as of the date of the gift; does not apply to a legacy or any form of donation mortis causa;
what is exempt from collation
i. Manual gifts – given by parents own hands to child; must be usual or customary gifts
ii. Gifts for the use during donor’s life – for the use and benefit of the donor during his lifetime
iii. School/necessitous expenses
iv. Gifts more than 3 years before donor’s death
v. Marriage gifts
vi. Gifts received by those not required to collate
From whom collation can be demanded –
children and grandchildren of the decedent may be required to collate gifts received by them via donation inter vivos but only if those from whom collation is demanded will inherit
A child may avoid the duty of collating by
renouncing the succession (must be valid)
iGifts made to a grandchild by his grandparent during the life of the parent (grandchild not appearing in the quality of an heir, but by representation)
are always exempt
collation of Immovables –
donee has option of taking less or return in kind; if the property has been sold, he loses the in kind option
collation of Movables –
cannot collate in kind, must take less;
collation of money is made by
returning a like amount or taking less
Donations Inter Vivos –
a contract by which a donor gratuitously divests himself at present and irrevocably of a thing to a donee, and the donee accepts
rules as for form do not apply to onerous and remunerative donations
a. Two-thirds rule –
value of the services rendered by the donee or the cost of the charges imposed by the donor must be equal to or greater than two-thirds of the value of the gift or the rules governing form of gratuitous donations will apply
Donations Inter Vivos – Requirements
- Donative intent
- Irrevocability
- Present property – future property cannot be donated, the donation is null
- Conditions – may impose charges or lawful conditions that are not contrary to good morals
a. Donor’s will – conditioned on the donor’s will is null
b. Right of return – allowed to stipulate that if he should survive the donee, or his descendants, he gets the thing back
Donations Inter Vivos – Form and Contents
1) must be made by authentic act (or it is an absolute nullity) and
2) identify the donor and donee;
3) adequate description of the thing donated
a. Confirmation – if null for lack of proper form, it may be confirmed, but must be in proper form and is retroactive
for IV donation of IM to affect 3P
The act of donation and act of acceptance must be filed for registry in the conveyance records of the parish where the immovable is located
Donation of Negotiable instruments –
promissory notes, endorsement and delivery
Donation of Stock certificates
in certificate form, endorsement and delivery
Donation of Checks
if it is the money represented by the check, it must be cashed; but if it is the check itself, delivery
Donation of Investment property –
may be donated by a writing signed by the donor that evidences donative intent and directs the transfer of the property to the donee or his account; completion of the transfer is acceptance (stocks)
acceptance
In act of donation or subsequently in writing – act of writing doesn’t have to be in authentic form
acceptance of Movable –
by putting the donee in possession
acceptance of Immovable –
subsequent alienation or encumbrance of an immovable by the donee shall be considered acceptance and is effective towards 3P when filed for registry
who can accept –
must be accepted personally and not by successors
inter vivos donations may only be revoked because of
ingratitude of the donee =
1) if the donee attempted to take the life of the donor
2) if the donee has been guilty of cruel treatment, crimes, or grievous injuries (any act which is naturally offensive) against the donor.
IV donation may be dissolved for
the nonfulfillment of a suspensive condition or the occurrence of a resolutory condition
Grounds for revocation (ingratitude)
1) when the donee has attempted to take the life of the donor, or
2) where donee is guilty of cruel treatment, crimes, or grievous injuries towards the donor (grievous injury – naturally offensive act)
acceptance of incorporeal mvbles
by AA or by compliance with specific rules governing it
prescription for collation
10 years from date of death, unless heir participated in succession and judgment of possession rendered which bars
Prescription for revocation –
must be brought within 1 year from when the donor knew or should have known of the act of ingratitude
- if the donor dies without knowing or having reason to know of the act, the successors have one year from the death of the donor to bring the action.
if the revocation is successful, the donee must
return to the thing donated as well as fruits and products;
if donee is not able to return the thing, he must
restore the value of the thing measured at the time the action to revoke is filed
Nonfulfillment of a suspensive condition –
dissolved of right when can no longer be fulfilled
Nonoccurrence of a resolutory condition –
not of right, may only be dissolved by consent of parties or judicial decree
Conditions within donees control –
does not of right dissolve the donation, only by consent of parties or judicial decree
Prescription – action to dissolve for failure to fulfill conditions or perform charges is
5 years from when the donee fails to perform the charge or fulfill his obligations, or ceases to do so
Effect of dissolution
Immovables
must be returned even if the donee has alienated; if the thing cannot be returned free of encumbrances, then donee is liable for diminution of value; if the thing cannot be returned, the donee is responsible for the value of the thing measured from when the action to dissolve is filed
Effect of dissolution
Movables
– effective against the donor only when it is by onerous title made in food faith by the transferee
Effect of dissolution
Fruits and products –
donee or his successors must restore fruits from the date of written demand
Settlor reserves the right to
modify, amend, revoke the trust in whole/part
Upon death, revocable trusts become
irrevocable
Settlor can delegate the power to revoke/amend ONLY by
an express statement in the trust instrument OR in a power of attny executed in authentic form referring to the trust
who may serve as trustee
1) a natural person enjoying full capacity to contract who is a citizen or resident alien of the US, who may be the settlor, beneficiary, or both
2) A federally insured depository institution organized under the law of LA, another state, or of the US - can be anywhere
3) a financial institution or trust company authorized to exercise trust or fiduciary powers under the laws of LA or of the US
beneficiary can be
• Can be nat’l person, corp, partnership, or other legal entity having the capacity to receive
If settlor ≠ provide for freq of payment,
$ distributed at least every 6 months
• Cannot have successive principal beneficiaries unless
“conditional substitution”
• If principal beneficiary dies before termination →
interest vests in his heirs/legatee
➢ Can refuse the interest in trust → refusal is irrevocable
• DIV -
• DMC -
AA unequivocally disclaiming the interest
Renounce the settlor’s succession
• Class Trusts - Can create IV or testamentary trust in favor of a class consisting of some or all of:
His children, grandchildren, great grandchild, siblings, nieces/nephews, grandnieces, great grandnieces or any combination thereof
• Person dies before creation of trust who would’ve been a member of the trust →
descendants are considered members of class by representation, unless provide otherwise
What happens during death of class member during term of trust • FH and dies intestate and w/o descendants =
interest vests in other members of the class
What happens during death of class member during term of trust • Not a FH and dies w/o descendants =
interest vests in other members of the class
What happens during death of class member during term of trust • Not a FH and dies w/ 1+ descendants =
vests in beneficiary’s descendant heirs
• Proper Court
o Inter Vivos Trusts -
The proper ct is the district ct of any parish that the trust effectively designates. Once a matter of an IVT has been litigated in a district ct, that ct continues as the SOLE proper ct (absent consent of ALL parties). If no ct is designated, ANY of the following:
• District ct of the parish where settlor was domiciled when trust was created
• District ct of the parish where a trustee is domiciled
• If no trustee is domiciled in LA, the district ct where an agent for service of process of any nonresident trustee is domiciled OR
• If no ct satisfies the above → the proper ct is the 19th JDC
• Proper Court
o Testamentary Trusts -
The proper ct is district ct of the parish having jurisdiction over the settlor’s succession, which continues as the proper ct unless the settlor designates another court in the instrument (this ct is proper per the settlor’s designation after the trustee is put into possession of the entire legacy) absent consent of ALL parties
• Creation of a Trust
Don’t need technical language to create a trust, but must be able to clearly understand that the settlor intended to create a trust
Inter vivos Trusts created by→
AA or AUPSDA
• Acknowledged by settlor or by the affidavit of attesting witnesses
• Effective upon execution of trust instrument, w/o regard to trustee’s acceptance
➢ Trustee’s acceptance is retroactive to date of trust creation
Testamentary trusts → are created only by
the forms for DMC (olographic or notarial form)
• DMC TRUST Effective upon death of the settlor
• Reasonableness requirement – trustee must accept w/in a reasonable amount of time in writing after trust’s creation, or ct will appoint a trustee
What can be placed in trust
o
o Any prop susceptible to private ownership
o A legitime or any portion of it, if it meets certain reqs (i.e. must be income + principle)
o Can have marital portion, life insurance proceeds, community prop in trust
If it is immvbl prop, to be effective against 3P 1 of the following must be recorded:
• Trust itself or • An extract which must include: ➢ Name of the trust ➢ Whether revocable/irrevocable ➢ Name of each settlor and signature for a DIV trust ➢ Name of each trustee and beneficiary ➢ Date of execution of the trust AND ➢ A brief legal description of the prop if the trust contains immvbl prop
A transfer/encumbrance of a beneficiary’s interest must be made by
AA OR AUPSDA
Spendthrift Trust—
When used w/o other qualifying words, a trust under which alienation by a beneficiary of an interest in income or principal is restricted
Spendthrift Trust—
• Ct may permit seizure to pay:
- alimony
- child support
- damages arising from a felony in which their was a plea/conviction of guilty
- for necessary health expenses arising from himself, spouse, kids
T is allowed to do the following, unless the trust provides otherwise:
• Incur expenses to carry out purpose of the trust, borrow funds and obligate the trust
• Lease (even beyond the term of the trust) or sell trust prop
➢ Settlor can’t forbid sale of immvbl prop for more than 15 yrs after settlor’s death
• Mortgage or pledge trust prop
• Compromise or submit to arbitration, or abandon claims affecting trust property
• Exercise all powers of holders of shares of stock or securities – including right to vote
Trustee is not allowed to
- Trustee cannot lend money to himself
- Trustee cannot buy/sell property for himself
- Cannot self-appoint a new trustee; but 3P may handle ministerial duties if the trustee gives them that power through POA
- Must keep accurate records of trust accounts and administration
- Provide complete and accurate information whenever beneficiary requests it as to nature and amount of trust property; can allow him to inspect trust accts, etc.
- Must take reasonable steps to take, keep control of, and preserve trust property
duties of trustee
- Administer the trust solely in the beneficiary’s interest or else breach of trust
o RPP - The trustee must “administer the trust as a prudent person would administer it.”
– Trustee is a fiduciary, with a duty of loyalty to the beneficiaries - furnish security in order to ensure the he’s faithfully performing his duties.
A trust instrument can relieve the trustee of liability, But, the trust instrument can never
relieve the trustee of his duty of loyalty to the beneficiaries or for acts of bad faith in performing his duties.
A beneficiary can also relieve the trustee of liability.
• But, the beneficiary can never relieve the trustee of either:
➢ The responsibility for “improperly advancing money or conveying property to a beneficiary of a spendthrift trust,” or
➢ His duty of loyalty or for acts committed in bad faith.
Removal of trustee:
for cause or if another manner is stated in the instrument
Compensation of Trustee -
Trustee gets paid “reasonable compensation” for being trustee from trust estate, unless trust provides otherwise or if trustee waives compensation
If settlor and 1 natural person income beneficiary, trust terminates =
death of last surviving income beneficiary OR 20 yrs from death of last settlor to die, whichever is last
Settlor not natural person but beneficiary is, trust will terminate=
death of last surviving income beneficiary OR 20 yrs from creation of the trust, whichever is last
Settlor natural person but beneficiary isn’t, trust will terminate =
20 yrs from death of settlor last to die
Settlor and beneficiary are not natural persons, trust terminates =
50 yrs from the creation of the trust
Ct can terminate if:
- continuance will substantial impair the purpose
- purpose for which it was created has become impossible
- trustee has determined that the market value of the trust is less than $100K
Termination in interest/death of more than 1 income beneficiary →
successors of beneficiaries become beneficiaries of that interest in income in proportion to the their interest
if the object of a legacy has been appropriated before the testator’s death
the legatee is entitled to any uncollected award and to succeed to any right of action concerning the expropriation.
who can request security for SS usufruct
forced heirs and non-children of SS
if testator can’t sign his name
he can have someone sign for him. testament cant be executed by mandatary of the testator.
active mass =
assets at death - liabilities owed at death + donations IV in last 3 years
contestation and establishment action
mother of a child institutes an action to establish both that her former husband is not the father of the child and that her present husband is the father, as long as the present husband acknowledged the child by authentic act or signed the birth certificate.
- must prove both by clear and convincing evidence
- peremptive time period of 180 days from the marriage to her present husband and within 2 years of the child’s birth
