donations Flashcards
creditors’ rights in relation to administration of estate
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)
what are the defenses to disinherison?
- reconciliation –clear and convincing evidence; writing by testator clearly and unequivocally proves
- age/mental incapacity –preponderance
- unintentional –preponderance
- justified –preponderance
requirements for disinherison
- express
- identifiable/name
- form prescribed for wills
- reasons, facts, or circumstances for just cause
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?
- assets remaining under administration of the estate
- successors to whom administration was made
- unsecured creditors who received payments, in proportion to the amounts paid by them.
when must a beneficiary be named in the trust & when does the beneficiary need not be named
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
how can a beneficiary refuse a trust
DIV –AA; DMC –renunciation in succession
how can bene alienate their interest
AA or AUPS executed in front of a notary and two witnesses and duly acknowledged by beneficiary or affidavit of 1 witness
which type of beneficiary can be successive
income
how often must income be distributed to income beneficiary
at least every 6 months (up to settlor’s discretion); can be differing amounts if there’s more than one income bene
when does income beneficiary interest terminate
death or expiration of enjoyment
whats the effect of income beneficiary termination
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
when is a successive principal beneficiary allowed for an irrevocable trust
(1) substitute is descendant of principal; or
(2) principal dies without descendants
when is a successive principal beneficiary allowed for a revocable trust
substitution occurs no later than the date the trust becomes irrevocable
effect of termination if PB dies before trust’s existence
if settlor’s descendant or sibling, then terminated PB’s descendants take PB’s interest
effect of termination if PB dies during the trust existence
PB’s interest goes to PB’s successors
what happens if settlor fails to name trustee
court can appoint –trust not invalidated
qualifications for natural person to be trustee
(1) citizen of US or (2) resident alien
qualifications for FDIC to be trustee
organized under (1) La. law; (2) US law; (3) laws of another state
qualifications for financial institution or trust company to be trustee
organized under (1) La. law; (2) US law; or (3) another state and operating under LA (only available for trust company)
form requirements for testamentary trust
created by DMC (notarial or olographic); comes into existence upon date of settlor’s death
form requirements for inter vivos trust
AA or AUPS executed in presence of 2 witnesses and acknowledged by settlor or witness affidavit; comes into existence upon execution of trust instrument
spendthrift trust parameters
beneficiary cannot voluntarily or involuntarily alienate interest in the trust
when can creditors seize beneficiary’s interest in the spendthrift trust
(1) alimony
(2) necessary services rendered or necessary supplies for dependent on beneficiary
(3) damages for felony crimes with conviction or guilty plea
if the settlor fails to designate a term, what are the parameters for termination of the trust (default rules)
- if at least 1 natural IB, terminates at the death of the last natural IB
- if no natural IB but at least 1 natural settlor, terminates 20 years from the death of the settlor
- if no natural IB or settlors, terminates 50 years from creation
if the settlor does provide a term, what are the limitations for termination of the trust
- 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
- 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
- if there’s at least one natural settlor, terminates 20 years from the death of the settlor
- if ther’s no natural settlor or IB, terminates 50 years from its creation
what’s required to place the legitime in trust
forced heir must be both PB and IB
when legitime is in trust, upon the death of the principal beneficiary, where does his interest vest
with his own heirs and legatees
when can the settlor shift the interest of the principal beneficiary upon the beneficiary’s death (legitime in trust)
the settlor may do so only if the beneficiary dies intestate and without descendants
first way trustee can invade the trust principal
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
what is the second way a trustee can invade the trust principal
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
