Code II - Successions & Donations Flashcards
What does succession mean?
The transmission of the estate of a deceased person to his successors, who have the right to take possesion of estate after complying with laws.
What does estate mean?
Includes property, rights and obligations of the deceased person, as well as charges that accure after his death.
Who is a successor?
Person who takes the place of another–universal and particular. 1. Universal–represents the deceased and succeeds to all of his rights and changes. Heirs, universal legatees, and general legatees. 2. Particular–Succees only yo certainr giths relating to a thing sold, ceded, or bequeathed to him. Buyers or donees of a particualr thing, etc.
What is the applicable law for successions?
Governed by the law in effect on the date of the decedent’s death.
What is an intestate succession?
Occurs when there is no will, the will is invalid in whole or in party, or the will does not dispose of all the decedent’s property.
What is a testate succession?
Will of a decedent, in a testament executed in the form prescribed by law.
What laws govern a legatee’s right to immovables situated in Louisiana?
A legatee must qualify as aperson under the laws of this state; either natural or juridical.
What laws govern succession to movables? To immovables?
- Movables–governed by the laws of the state in which the decedent was domiciled at the time of his death. 2. Immovables in LA–state of La. 3. Immovables outside LA–laws of the state that would be applied by the courts of the state where the immovable was located.
What are the three general ways for a successor to inherit?
- In his own right; 2. By representation; 3. By transmission.
Who has capacity to inherit?
To inherit, one need only be in existence at the time of the decedent’s death for an instant. Includes children conceived and later born alive; artificial insemination. Age and mental capacity are irrelevant as to capacity to inherit. Capacity determined under the law of the state in which the decedent was domiciled at the time of his death.
What are the five classes of heirs as to separate property?
Descendants; parents and siblings (descendants of siblings by rep) (if both, parents receive usufruct subject to siblings naked ownership); surviving spouse; more remote ascendants; more remote collaterals.
Does the most favored class take to the exclusion of other classes?
Relatives in the most favored class take to the exclusion of the other classes. Nearest relation in a class, takes to the exclusion of the more distant relatives in the class. Nearest relative in highest class inherits by intestacy.
What is a degree? Do persons of a same degree share equally?
- A degree is a generation. 2. Closest degree will inherit; parents of the same degree share equally and to the exclusion of the more remote relatives.
What is a direct line? What is a collateral line?
- Direct–ascendants and descendants. 2. Collateral–count up to the nearest common ancestor, then count to the decedent. Lowest number of steps is the closest relative.
How do descendants inherit separate property by intestacy?
- Children or their representatives take to the exclusion of other heirs; also includes adopted children, illegitimate children who or formally acknowledged or timely acknowledge filiation. Does not include foster children.
How do parents and siblings inherit separate property by intestacy?
- Decedent with no descendants–parents and siblings, by representation, succeed.
When may a father inherit from a deceased child?
Father enjoys: 1. Presumption of paternity as husband of the mother of a deceased child; 2. Presumption by marriage to the mother and formal acknowledgemtn that is not rebutted. A father who has only formally acknowledged an illegitimate child must file suit to avow paternity to inherit from the child. Must file the avowal action within one year of child’s death.
What are parents’ usufruct and siblings naked ownership?
Parents have joint and successive usufruct, and the siblings have naked ownership. If one parent dies, the entire usufruct accrues to the survivor, and the sibling or their descendants continue to have only a naked ownership interest.
What is the donation of immovable property exception?
Ascendants inherit to the exclusion of all others when they donate an immovable to a descendant, and the D dies without posterity and has not disposed of the immovable. If immovable donated has been alieanted, and full price is not yet due, ascendant as a right to receive the proceeds.
What are the obligations imposed on the donor-ascendant upon return of the immovable?
If ascendant inherits the immovable property under the exception, he takes it subject to all mortgages and is vound to contribute to payment of debts of the succession of the descendant in proportion to the value of the immovable donated.
Who does the estate go to if there are no descendants or parents?
Entire estate goes to the siblings of the descedent to the exclusion of all others.
What about half-blood siblings? What do they take?
Property is divided equally between the paternal and maternal lines. Those who share parents with the deceased sibling take in both line. Half-blood siblings take only in their respective lines.
What if there are no siblings, but a parent surviveS?
Parents take the entire estate in full ownership.
What share does the surviving spouse take?
If the decedent has no surviving descendants, parents, or siblings, then the surviving spouse, not judicially separated, inherits to the exclusion of other ascendants and other collaterals. Watch out for the spouse that is not divorced, but IS judicially separated.
What happens with more remote ascendants?
If the deceased has no surviving descendants, sibling,s parents or surviving spouse, and a grandparent or grandparents survive, then they divide the estate. If one ascendant is nearer in degree than the others, he takes everything. If ascendants in the same degree survive, they divide the states by roots, with one half going up to the maternal side, and one-half going to the paternal side. No represenation is the ascending line–nly works in descending line for siblings.
What about more remote collaterals?
If desceased has no surviving descendants, parents, siblings, or ascendants, that the nearest collaterals will take, by counting to the nearest degree. No rep, only equal division by heads.
What happens if there are no heirs?
Estate escheats to the state.
What is surviving spouse’s half of community property?
If one spouse dies, the other spouse has full ownership of her one-half share of all community property, not by inheritance but as owner.
Who inherits decedent spouse’s half of community property?
- Children or other descendants–decedent’s one-half interest in community property goes to them subject to a usufruct granted by law to the surviving spouse. If child renounces his parent’s half of community, the child’s descendants inhiert, rather than the deceased parent’s spouse. 2. No children or other descendants–if the decedent leaves no descendants, then the decedent’s one-half interest in CP goes to the surivivng spouse.
Who inherits community property of a putative marriage?
- Decedent spouse in good faith–spouse’s share in CP goes to his successors. Legal and puttive spouses share th other half pro rata. 2. Decedent spouse in bad faith–Entire community is divided between the putative spouse and the legal spouse.
What is the Article 890 usufruct of the surviving spouse?
- Applies only in an intestate situation, decedent may deprive SS in the will. 2. Grants a legal usufruct to the surviving spouse over the decedent’s share of community property and the naked ownership of the decedent’s share to his children. 3. Applies even when the children who inherit are not children of the marriage; SS must give security when the naked owner is not a child of the SS. 4. Continues until the SS dies or remarries, whichever occurs first.
What are the inheritance rights of adopted children?
- Entitled to full inheritance rights if they were born of the decedent’s marriage. Concurrence of spouse is required for married person to adopt. 2. Adtoped person may inheirts from his adoptive parents and his natural parents and relatives. However, inheritance rights of bio parents is not reciprocal; legal adoption severs inheritance rights.
What are inheritance right of children born outside of marriage?
- Inherit to the same extent as do children born of marriage if the child is formally acknowledged; parents subsequently marry and acknowledge; child timely files a paternity action; or the father timely files an avowal action.
How must a formal acknowledgment occur for child to inherit?
- Either by a declaration by the father executed before a notary public in the presence of two witnesses OR the father signing the birth certificate. Child may not be filiated to another man, and the mother must concur.
What are the reciprocal inheritance rights between illegitimate child and father?
- Presumption of paternity when father is married to the mother works in favor of the child and the father both. 2. When father is not married to the mother, presumption of paternity works only in favor of the child and not the father. For father to have inheritance rights from deceased child out of wedlock, he must file an avowal action.
How may a child file suit to prove paternity to a biological father for the purpose of inheritance?
- Must file a paternity suit. Informal acknowledgment is not enough. 2. Burden of proof in an action to establish paternity is on the child. Preponderance of evidence if father is ALIVE; Clear and convincing if father is deceased.
What are the time limits for filing a paternity suit?
- Time limit to file suit to establish filiation is one year from the death of the alleged father. Period is peremptive, so it runs against all persons, minors, and interdicts. Failure to file timely is an absolute bar. Age of child is immaterial.
What is an avowal action?
A biological father may file suit to estalish his paternity of a child, even if the child is presumed to be the child of another man. Burden of proof is on the father, and he must prove his paternity by a preponderance of the evidence.
What are the time limits for an avowal action?
- PRESUMED TO BE CHILD OF ANOTHER MAN. Must be filed within one year form the birth of the child; unless the mother decieved father in bad faith regarding his paternity, then father has one year from date he knew/should have known. In any case, action must be filed within one year of the child’s death. 2. CHILD NOT PRESUMED OF ANOTHER MAN. Father can file suit at any time, but no later than one year from child’s death.
What is representation?
Has an effect on degree cound. Descendants of children/siblings of the decedent who would take, but have predeceased the decedent, take by representation–step into shoes of their deceased ancestor.
Where does representation take place?
Does not take place in the ascending line; only takes place in the descending or collateral line.
Descendants inherit per stirpes?
Multiple descendants in the same degree do not necessarily divide the decedent’s estate per capita, but split pro rata the share of a predeceased ancestor whom they represent.
How is representation in the collateral line limited?
Only descendants of brothers and sisters of the deceased may inherit by representation.
Can someone who has renounced his right ot succeed from another person still represent that other person?
Yes.
What are the special rules for representation for forced heirs?
- Representation is limited to grandchildren whose parent has predeceased the decedent and would not have attained age 24 at the time of the decedent’s death or grandchildren whose parent has predeceased the decedent and who are permanently disabled.
What is the presumption for survivorship?
If there are no facts to show who died first in a common disaster, each person who perised is effectively presumed to survive the other. Burden of proof is on person claiming through the alleged survivor.
What is short-term survivorship?
Testotor may impose a short-term survivorship clause requiring the legate to survive him for a stipulated period of time not to exceed SIX MONTHS.
When does a successor acquire ownership of the decdent’s property?
- Immediately upon the decedent’s death, a successor acquires ownership, or is seized, of the decedent’s property. Rights of the successor are transmitted to his own successors at this death, as is possession. (particular successor may commence a new possession for purposes of acquisitive prescription)
Who can exercise succession rights?
Limited if there is a succession representative. Prior to appointment of a rep, a successor may exercise ownership rights in terms of his interests in a thing of the decedent’s estate as well as his interest in the estate as a whole.
What is unworthiness?
When a heir or legatee is judicially declared unworthy, he is deprived of the right to inherit. Must be pronounced by a court in an action filed in the succession proceeding of the decedent.
Who may bring an unworthiness action?
Generally, may only be brought by a person who would succeed in place of or in concurrence with the unworthy successor, or by one who claims through such a person. An attorney may be appointed for a successor minor or interdict.
What are grounds for a declaration of unworthiness?
Convicted of a crime involving the intentional, unjustified killing/attempted killing of the decedent or if not convicted, judicially determined to have participated in. Governor/statutory pardon does not remove the unworthiness.
Where must an unworthy action be brought?
- Must be brought in the succession proceeding; 2. Applicable prescriptive period is five years; intestate succession, runs from date of death; in testate succession, runs from the date of probate.
What is the effect of unworthiness on the unworthy successor?
- Intestate–Treats the unworthy successor as if he predeceased the decedent. 2. Testate00decolution may be pursuant to the testament–look to the testamentary accretion that would apply if the unworthy successor had predeceased the decedent.
What are the devolution rights of minor children of unworthy successor?
- If an unworthy heir’s descendant takes under the Civil Code, and the descendant is a minor, neither the unworthy parent nor the other parent has a usufruct over the property that the minor inherits.
Whare are other prohibitive effects resulting from being declared unworthy?
Also loses: 1. Right to claim as a forced heir, even if he previously qualified as such; 2. Right to serve in any fiduciary capacity in the succession of the decedent incluidng the right as executor, trustee, attorney or administrator.
What are the obligations of the unworthy successor?
- If successor HAS possession of decedent’s property–he must return it with all fruits and products. 2. If successor DOES NOT have possession of decedentn’s property–he must acocunt for value of the property (as well as all fruits and products) at the time of the transfer or loss of possession.
What is the effect of reconciliation?
Reconciliation/forgiveness will cure the grounds of unworthiness; e.g. attemp to kill.
What law governs the unworthiness of an heir?
Determined under the law of the state in which the deceased was domiciled at the time of his death.
What are successor’s three option on decedent’s death?
- Accept the succession; 2. Renounce the succession; 3. Accept in part and renounce in part.
What is the presumption of acceptance for successors?
All successors are presumed to accept, but there is a special rule that provides for compelling a successor, for good cause, to accept or renounce. A minor is deemed to accept, but his legal rep may renounce.
Can a successor accept or renounce before the death of the decedent?
- Successor must know of the death of the decedent. Premature acceptance/renunciation is absolutely null.
When is an acceptance or renunication valid?
Only valid if a person (1) knows of the death of the decedent; 2. Knows he has rights as a successor. Does not need to know extent of rights/nature of his relationship to the decedent.
Can an heir accept an inheritance but renounce accretion?
Yes, an heir can accept an inheritance but renounce the accretion that arises from someone else’s renunciation. Also the converse; can be inconsisent.
What happens if an acceptance/renunication of rights to succeed by intestacy once a testament is subsequently probated?
- Intestate–Acceptance/renunication is rendered null. 2. Testate–null if probate annuled/rights are altered/amended.
Can a legacy subject to a suspensive condition be accepted or renounced?
Yes, may be accepted or renounced before or after fulfillment of the condition.
How long does a successor have to renounce or accept?
No longer a prescription period, as all successors are presumed ot accept. The “good cause” rule of compelling a successor to accept or renounce grants a court discretion to make the successor decide and not impede the administration of the succession.
Can a creditor of a successor prohibt his renunciation ot a succession?
Yes, at least to the extent of the debt. Creditor can also exercise oblique action if he shows fraud on the part of the debtor and intent to injure the creditor.
Does acceptance need to be formal?
No, acceptance can be either formal or informal. 1. Formal acceptance is express and in writing OR in a judicial proceeding. 2. Informal acceptance is an act that implies intent to accept. Must know the property belongs to decedent; an act of ownership is rquired; acceptance must be manifested by an act of the heir; such as AEL of the inherited share.
When is an act of renunciation really an acceptance?
An act of reunciation is an acceptance if it is made for a price or if it is gratuitous but made in favor of anyone to whom the inheritance would not otherwise accrete.
What is the effect of acceptance on the successor’s liability?
Liable for debts of estate, but liability is limited to the value of the property the heir actually received, valued at the time of receipt.
What are the requirements for a valid renunciation?
- Must be express and in writing, although it does not have to authentic act. Cannot merely be oral.
What is the effect of renunciation on the succession?
- Intestate–accretion flows as if renouncing heir precedeased the decedent. 2. Testate–renunication is also treated as if the legatee predeceased the testator. However, if there is a governing testamentary disposition, the testament governs the accretion.
What is the effect of renunication on other inheritance rights?
A successor may renounce accretion independent of his acceptance or renunication of other inheritance rights–can accept the original inheritance for example but renounce what comes by accretion.
Can a renouncing relative still represent?
A relative who renounces his share of a succession may still represent that person whose succession he renounced in the succession of another.
Who has capacity to renounce?
To renounce, the heir must have the capacity to alienate, but for a minor, a tutor may renounce with court authorization.
What happens if someone renounces who is outside the order of accretion?
At attempt to renounce a share in favor of someone outside the designated order of accretion is not a true renunciation. One is consdiered to have accepted the succession and then donated the share to the intended designee. Because this is a donation, it must be by authentic act.
What are the estate debts?
- Debts of the decedent–Those incurred by the decedent; and those arising as a result of hisd eath. 2. Administration expenses–those incurred in the collection/preservation/management of the decedent’s estate.
What is the liability of successors to creditors?
- Universal successors are liable for the estate debts, including debts of the decedent and administration expenses, to the extent of the value of the property received by them. Liability of successors is joint, not solidary.
What happens when a successor is also a creditor?
A successor who is a creditor of the estate is paid in the same order of preference as other creditors. He is given no special beneift or detriment merely for being a successor.
What is the order of payment for creditors?
- Secured creditors–creditor will be paid in accordance with the preference/priority of his security right. 2. Unsecured creditors–Share pro rata with other unsecured creditors.
How are debts apportioned among successors?
- Will may make specific provisions for the payment of debts. Rights of creditors cannot be impaired by a testator’s will or by agreement among the successors.
How are charges on identifiable property allocated?
Estate debts attributable to identifiable proeprty are generally chargable to that property and its fruits and products.
How are debts of decedent charged on the succession?
- Charged ratably to property that is the object of general/universal legacies and proeprty that passes by intestacy, valued at the date of death. If that property is insufficient, the debts remaining are charged in the following order: 1. Ratably to fruits/prodcuts that is the object of general/universal legaics and of property that devolves by intestacy; 2. Ratably to fruits/products of property that is object of particular legacies; and then to the property itself.
How are administration expenses charged on the estate?
- Ratably to fruits/prodcuts that is the object of general/universal legaics and of property that devolves by intestacy; 2. Property itself; 3. Ratably to fruits/products of property that is object of particular legacies; and then to the particular legacy property itself.
How are receipts and expenditures allocated?
Allocated to all successors pursuant to fairness and equity. This standard also applies to other expenditures relating to professional services facilitating the succession, e.g., attoreny’s fees.
What classes of rights and obligations are proteced in the context of payment of estate debts?
- Rights/obligations of a usufructary with respect to payment of estate debts; 2. Rights/obligations of an income interest in trust with respect to payment of estate debts.
What is a donation inter vivos?
A contract by which the donor gratuituously divests himself, at present and irreovcably, of the thing given, in favor of a donee who accepts the thing.
What is a donation mortis causa/?
A donation to take effect at death of the donor where he divests himself of all or part of his property and is recovable during the donor’s lifetime.
What are the three requirements for a valid donation?
- Capacity to give and receive exists; 2. Requisite formalities are followed; 3. Substantive limits are not violated.
What are the form requirements for donations?
- Inter vivos–Contingent on the object of the donation. 2. Mortis causa–must be made by testament.
Is there a presumption of capacity to make and receive donations?
Everyone is presumd to have capacity to make and receive donations except persons whom the law declares incapable. 1. Timing–capacity must exist at time of donation or when testator executes the settlement. 2. A minor under 16 years of age cannot make either an inter vivos or mortis causa donation, except to his pouse or children. A minor between the age of 16-18 can execute a will, but cannot make inter vivos gifts except to his pouse and children.
What must the mental condition of the donor be to make donations?
- Donor must be able to comprehend generally the nature and the consequences of the disposition that he is making. Person challenging capacity must prove by clear and convincing evidence that the donor lacked capacity at the time the inter vivos donation was made/at the time the testament was executed.
What is the capacity of interdicts to make donataions?
- A full interdict lacks capacity to make a juridical act; cannot make or renvoke a donation. 2. A limited interdict lacks capacity to make a juridical act pertaining to property under limited interdiction. Presumption that he has capacity to make donations of property not covered by the interdiction. Challenge his capacity by preponderance of the evidence.
What are the vices of capacity?
Fraud, duress, undue influence. 1. Fraud–a donation that is the product of fraud is null. 2. Undue influence–Null when it is the product of influence by donee/other person so impaired the violition of the donee replaced volition of the donor.
Is the entire donation null if one provision is void because of vice of capacity?
No, if any provision is not the product of such a vice, then that provisions shall be given effect unless it is null for some other reason.
What is the burden of proof to to challenge a donation?
- Must prove the claim by clear and convincing evidence. If relationship of confidence existed at the time, then challenger need only prove vice by preponderance.
Can someone who exercises undue influence on a donor not be permitted to serve as the executor, trustee, attorney or other fiduciary?
Yes, can be prevented from serving in that capacity.
What laws apply for capacity?
A person will hae capacity to make a testament if, at the time of making the testament, he possessed that capacity under the law of the state (1) where he was domiciled at the time of making the testament; or (2) where he was domiciled at the time of his death.
What laws apply when there have been vices of capacity?
- Capable under the laws of both states–his will shall be held free of vices if ti would be so under the law of either one of the states; 2. Capable under laws of one of the states–hi will shall be hald free of vices only if it would be so under the law of the state where he was considered to have capacity.
What is the capacity of the donee to receive donations?
To receive, the donee must be in existence at the time of accpetance of the gift for donations inter vivos or at the time of the testator’s death for donations mortis causa. 1. Unbrn child in utero–must be in utero when donation made/testator dies. Child must be born alive. 2. Exception where child is conceived from frozen sperm after father dies and the mother is the surviving spouse, father authorized in writing the use of gametes; and the child is born within three years of the death of the decedent father.
When are donations to organizations valid?
A donation to an organization is valid if the organziation exists at the time the donation takes effect.
What about donations subject ot a suspensive condition?
If the donation hinges on the fulfillment of a suspensive condition, the donee must have the capacity to receive at the time the condition is filled.
