donations

Question 1

creditors’ rights in relation to administration of estate

Answer 1

universal successors are liable to creditors for payment of estate debts in proportion to the part which each has in the succession (only liable for extent of property value received by him)

Question 2

what are the defenses to disinherison?

Answer 2

1. reconciliation –clear and convincing evidence; writing by testator clearly and unequivocally proves
2. age/mental incapacity –preponderance
3. unintentional –preponderance
4. justified –preponderance

Question 3

requirements for disinherison

Answer 3

1. express
2. identifiable/name
3. form prescribed for wills
4. reasons, facts, or circumstances for just cause

Question 4

when creditor asserts rights after administration of the estate, and successors have been pain in whole or in part, where can creditor get money from?

Answer 4

1. assets remaining under administration of the estate
2. successors to whom administration was made
3. unsecured creditors who received payments, in proportion to the amounts paid by them.

Question 5

when must a beneficiary be named in the trust & when does the beneficiary need not be named

Answer 5

beneficiary must be named in an irrevocable trust; a beneficiary need not be named in a revocable trust –can be determined at a later date if method provided

Question 6

how can a beneficiary refuse a trust

Answer 6

DIV –AA; DMC –renunciation in succession

Question 7

how can bene alienate their interest

Answer 7

AA or AUPS executed in front of a notary and two witnesses and duly acknowledged by beneficiary or affidavit of 1 witness

Question 8

which type of beneficiary can be successive

Answer 8

income

Question 9

how often must income be distributed to income beneficiary

Answer 9

at least every 6 months (up to settlor’s discretion); can be differing amounts if there’s more than one income bene

Question 10

when does income beneficiary interest terminate

Answer 10

death or expiration of enjoyment

Question 11

whats the effect of income beneficiary termination

Answer 11

if there’s only one (& no substitute), then the principals become income beneficiaries.

if there’s more than one (& no substitute), then the other income beneficiaries take the terminated interest

Question 12

when is a successive principal beneficiary allowed for an irrevocable trust

Answer 12

(1) substitute is descendant of principal; or
(2) principal dies without descendants

Question 13

when is a successive principal beneficiary allowed for a revocable trust

Answer 13

substitution occurs no later than the date the trust becomes irrevocable

Question 14

effect of termination if PB dies before trust’s existence

Answer 14

if settlor’s descendant or sibling, then terminated PB’s descendants take PB’s interest

Question 15

effect of termination if PB dies during the trust existence

Answer 15

PB’s interest goes to PB’s successors

Question 16

what happens if settlor fails to name trustee

Answer 16

court can appoint –trust not invalidated

Question 17

qualifications for natural person to be trustee

Answer 17

(1) citizen of US or (2) resident alien

Question 18

qualifications for FDIC to be trustee

Answer 18

organized under (1) La. law; (2) US law; (3) laws of another state

Question 19

qualifications for financial institution or trust company to be trustee

Answer 19

organized under (1) La. law; (2) US law; or (3) another state and operating under LA (only available for trust company)

Question 20

form requirements for testamentary trust

Answer 20

created by DMC (notarial or olographic); comes into existence upon date of settlor’s death

Question 21

form requirements for inter vivos trust

Answer 21

AA or AUPS executed in presence of 2 witnesses and acknowledged by settlor or witness affidavit; comes into existence upon execution of trust instrument

Question 22

spendthrift trust parameters

Answer 22

beneficiary cannot voluntarily or involuntarily alienate interest in the trust

Question 23

when can creditors seize beneficiary’s interest in the spendthrift trust

Answer 23

(1) alimony
(2) necessary services rendered or necessary supplies for dependent on beneficiary
(3) damages for felony crimes with conviction or guilty plea

Question 24

if the settlor fails to designate a term, what are the parameters for termination of the trust (default rules)

Answer 24

1. if at least 1 natural IB, terminates at the death of the last natural IB
2. if no natural IB but at least 1 natural settlor, terminates 20 years from the death of the settlor
3. if no natural IB or settlors, terminates 50 years from creation

Question 25

if the settlor does provide a term, what are the limitations for termination of the trust

Answer 25

1. if at least one IB and one settlor are natural persons, terminates at the later of the death of the last IB or 20 years after the death of the settlor
2. if there’s at least 1 natural IB, terminates at the later of death of the last IB or 20 years after the trust’s creation
3. if there’s at least one natural settlor, terminates 20 years from the death of the settlor
4. if ther’s no natural settlor or IB, terminates 50 years from its creation

Question 26

what’s required to place the legitime in trust

Answer 26

forced heir must be both PB and IB

Question 27

when legitime is in trust, upon the death of the principal beneficiary, where does his interest vest

Answer 27

with his own heirs and legatees

Question 28

when can the settlor shift the interest of the principal beneficiary upon the beneficiary’s death (legitime in trust)

Answer 28

the settlor may do so only if the beneficiary dies intestate and without descendants

Question 29

first way trustee can invade the trust principal

Answer 29

settlor can direct or permit an invasion for the IB support, maintenance, education or medical expenses or for any other purpose, under an objective standard, the settlor can direct the trustee to do so in his complete discretion

Question 30

what is the second way a trustee can invade the trust principal

Answer 30

proper court can direct or permit a trustee to pay income or principal from the trust property for support, maintenance, education, medical expenses or welfare of a beneficiary before the time he is entitled to the enjoyment of that income or principal, if the interest of no other beneficiary of the trust is impaired