export_successions Flashcards
Successions@StudyBlue
A disposition of all of the estate or the balance of the estate that remains after particular legacies.
Universal legacy
A disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a fraction or a certain proportion of a balance of the estate that remains after particular legacies.
General legacy
A legacy that is neither general nor universal.
Particular legacy
When the testator assigns shares.
Separate legacy
When the testator does not assign shares
Joint legacy
Intestate heirs, universal legatees and general legatees
Universal successors
- Legatee predeceases the testator
- Legatee is incapable of receiving
- Suspensive condition can no longer be fulfilled
- Legatee is declared unworthy
- Legacy is renounced
- Legacy is declared invalid (absolute nullity)
- Legacy is declared null (invalid nullity)
Grounds for lapse
When a legacy lapses, this takes place.
Accretion
- Testamentary disposition
- Anti-lapse Rule (aka most favored class rule)
- Joint legacies
- General and particular legacies
- Universal legatees
- Intestacy
Rules governing accretion
If a legatee, joint or otherwise, is a child or sibling of the testator, then to the extent that the legatee’s interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent’s death.
Most favored class rule / anti-lapse rule
When a legacy to a joint legatee lapses, accretion takes place ____.
Ratably in favor of the other joint legatees, except as provided in the following article.
When a particular or general legacy lapses, accretion takes place in favor of ____.
the successor who, under the testament, would have received the thing if the legacy had not been made.
(Big legacy gets the little legacy).
All legacies that lapse, and are not disposed of under the preceding articles, accrete _____.
ratably to the universal legatees.
When a general legacy is phrased as a residue or balance of the estate without specifying the residue or balance is the remaining fraction or a certain portion, it shall be treated as:
a universal legacy for purposes of accretion.
- Descendants (by heads)
- Siblings & their descendants.
- Parents
- Surviving Spouse
- Other ascendants
- Other collaterals
Separate Property
- Descendants
2. Surviving Spouse
Community Property
- Immovable donated by ascendant
- Decedent lacks posterity
- Property found in the succession
Anomalous Succession Prerequisites
- Absence of a legal impediment
- Marriage ceremony
- Free consent of the parties to take each other as husband and wife
Requisites for a valid marriage
- Existing marriage
- Same sex
- Impediments of relationship
Legal impediments to marriage
- Officiant
- Physical presence of parties
- Free consent
- Not given under duress or by a person incapable of discernment
Marriage ceremony requirements
- Filiation of children
- Inheritance rights
- Community property rights
- Alimony/spousal support rights
- Right to marital portion
Civil effects of marriage
The civil effects of marriage flow in favor of a “putative” spouse even though the requirements for a valid marriage have not been met.
Putative spouse doctrine.
A marriage is ______________ when consent of one of the parties to marry is not freely given.
It produces civil effects until it is declared null.
Relatively null marriage.
A marriage is ________ when contracted without a marriage ceremony, by procuration or in violation of an impediment.
Absolutely null marriage.
Absolutely null marriage produces civil effects in favor of a party who contracted in good faith for as long as that party remains in good faith.
Same sex does not produce civil effects.
Effects of an absolutely null marriage.
Bigamous spouse in bad faith.
The community is divided equally between the wives.
Bigamous spouse in good faith.
Community is divided 1/2 to H, 1/4 to each wife.
A testamentary usufruct.
- Not required to post security
- However a forced heir may request security when the usufruct affects the legitime.
1499 Usufruct
A charge on the succession of the deceased spouse.
- Prereqs:
- Rich in comparison
- Spouses not separated through fault of the surviving spouse.
Marital portion
3 or fewer children: 1/4 of the succession in usufruct.
4 or more children: 1/5 of the succession in usufruct.
Security is dispensed with unless the child is a step-child.
Prescription: 3 years.
Capped at 1M
Calculating the marital portion.
- Absence for five years.
- When the military presumes a soldier dead.
- Death seems certain
* Preponderance of the evidence
Grounds for judicial declaration of death
An unborn child, conceived at the death of a decedent and thereafter born alive ________.
shall be considered to exist at the death of the decedent.
- Criminal conviction (involving the killing or attempted killing of the decedent).
- Civil determination (judicially determined to have participated in the killing or attempted killing of the decedent).
Grounds for unworthiness
- Judgment of liability
2. Declaration of unworthiness
Judicial determination of grounds for unworthiness
Only by a person who would succeed in place of or in concurrence with the successor to be declared unworthy or by one who claims through such a person.
Who may bring an unworthiness action?
A successor shall not be declared unworthy if he proves _____ or _____ by the decedent.
reconcilliationwith or forgiveness.
An executive pardon/pardon by operation of law does or does not affect unworthiness?
Does not.
Prescription for unworthiness
Intestate: 5 years from death of the decedent.
Testate: 5 years from probate of the will
(Intestate succession) The succession rights of the unworthy successor devolve as if _______. If the unworthy successor is a descendant, sibling or descendant of a sibling of the decedent _________ occurs.
he predeceased the decedent.
quasi-representation
(Testate succession) - Testamentary accretion occurs as if the the unworthy successor _____.
predeceased the decedent.
An unworthy successor may not serve as:
an executor, trustee, attorney or other fiduciary of the estate.
If an unworthy successor has possession of the property of the decedent, he must __________.
Return it along with any fruits and products he has derived from it.
If the unworthy successor does not have possession of decedent’s property _____.
he must account for the value of the property at the time of the transfer or loss along with all fruits and products derived from it.
Partial acceptance is/is not allowed?
Is allowed.
A minor may or may not renounce succession rights?
May, but requires court approval.
A person may not accept or renounce rights to succeed ______.
Before the death of the decedent.
Acceptance or renunciation is valid only if:
- He knows of the death of the decedent and
- of his rights as a successor (though it is not necessary that he know the extent of those rights or the nature of his relationship to the decedent).
A premature acceptance or renunciation is:
absolutely null.
A legacy that is subject to a suspensive condition may be accepted or renounced:
either before or after the fulfillment of the condition.
A successor may assert a claim that he has as a creditor of the estate, _________.
Whether he accepts or renounces his succession rights.
Successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding.
Formal acceptance
Successor does some act that clearly implies the intention to accept.
Informal acceptance
Only _____ are liable for estate debts and only ______.
universal successors; up to the amount of property received.
Renunciation must be ______ and ______.
Express and in writing.
One might have a will and still have the rules of intestate succession apply if:
the will is invalid or if the will does not dispose of all of the decedent’s property.
Rules of intestacy distribute property according to the object of the decedent’s natural affection; fulfills the presumed wishes of the decedent.
Presumed will theory
Fulfills what the intent of the decedent ought to have been; prefers those most likely to have been dependent on the decedent.
Duty theory
Declared it unconstitutional under equal protection to discriminate among illegitimate children and legitimate children.
Succession of Brown.
Maternal filiation must be proven by:
a preponderance of the evidence.
The husband of the mother is considered to be the father of the child if the child is born:
during the marriage or within 300 days of the termination of the marriage.
To disavow paternity, the presumed husband must prove by:
clear and convincing evidence, and must do so within 1 year of when he knew or should have known of the child’s birth.
The disavowal action is/is not heritable.
Is.
What is the prescriptive period on disavowal brought by legatees or heirs?
1 year from the date of the father’s death if prescription commenced during the father’s life, or 1 year from the day they are notified in writing that someone is claiming the decedent is the father.
If the common spouse is in bad faith, then that spouse (or his/her heirs) is not entitled to community property. (Case)
Patton
A trust is:
a relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.
The three people involved in a trust.
Settlor, trustee and the beneficiary
The trustee is the person:
responsible for administering the trust.
The trustee must be a:
person, Louisiana bank or FDIC insured institution
The trustee can do what?
Enter into contracts, exercise stock options, mortgage property.
Two types of beneficiaries of a trust.
Income beneficiaries (receive the income - interest - the principle earns) Principal beneficiaries (receive the principal when the trust ends). Principal beneficiaries cannot be successive because this would be a prohibited substitution.
Trusts can be classified as:
either testamentary or intervivos and as onerous or gratuitous.
A trust is testamentary when:
it is created by donation mortis cause. RS 9:1732
All trusts not testamentary are considered inter vivos regardless of time of creation. (RS number)
RS 9:1733
Technical language required for the creation of a trust.
No particular language is required to create a trust, but it must clearly appear that the creation of a trust is intended. A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions if the trust instrument is susceptible of such an interpretation. RS 9:1753.
The Trust Code permits the trustee to invade principal to pay principal to an income beneficiary.
Invasion of principal
The proper court may direct or permit a trustee to pay income or principal from the trust property for:
the necessary 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 thereby. RS 9:2067
How is trust income charged?
First against the principal interest of the income beneficiary (if the income beneficiary is also a principal beneficiary) or against the shares of all principal beneficiaries proportionally.
A contract by which a person, called the donor, gratuitously gives at present and irrevocably, a thing given in favor of another, called the donee, who accepts it.
Donation inter vivos
Formal requirements for a donation inter vivos.
An authentic act.
A corporeal movable may be donated by delivery of the thing to the donee.
Manual gift exception
A donation is an act to take effect at the death of a donor by which he disposes of the whole or a part of his property. It is revocable during the lifetime of the donor.
Donation mortis causa
Formal requirements of a donation mortis causa
A valid testament
Donations of property left at death - Marriage exception to substantive requirements
A spouse may make an inter vivos donation of property “that the donor will leave at his death” to his spouse. The donation is revocable and does not require a will.
Reservation of a right to revoke (during marriage)
A spouse may reserve the right to donation made to the other spouse.
The portion of the estate to which forced heirs are entitled.
Forced portion
If a decedent leaves a will omitting his forced heirs, the forced heir(s) may demand _________ of the donations made by virtue of the will.
Reduction
Forced heirs enjoy the right to demand _______ of donations given by the decedent to his descendants. It involves the return of these donations to the succession so that this property can be evenly distributed among the descendants. It is done in order to ensure equality between the descendants of the decedent and nothing to do with satisfaction of the legitime.
Collation
Life insurance contracts are ______. The _____ designation controls.
sui generis
beneficiary
Proceeds paid pursuant to the policy cannot be claimed by successors of the insured unless:
the policy names the estate as the beneficiary. Then the proceeds are payable to satisfy legacies of cash to the legatees or inure to the benefit of intestate successors.
Proceeds from a life insurance policy cannot be claimed by:
creditors of the insured or creditors of the beneficiary (at least for debts in existence at the time the beneficiary receives the funds).
Life insurance proceeds are exempt from:
the claims of forced heirs.
The proceeds of a life insurance policy are not used to:
calculate the value of the forced portion and are not subject to reduction by forced heirs.
If a forced heir is named as a beneficiary, proceeds are
imputed against the forced heir’s claim to his legitime.
Life insurance proceeds are/are not subject to collation.
Are not.
Death benefits paid pursuant to the annuity cannot be claimed by:
successors of the insured or creditors of the insured or creditors of the beneficiary.
Annuities are/are not exempt from the claims of forced heirs.
are not exempt We use the value of annuities to determine the value of the forced portion and they are subject to reduction.
Are co-owned bonds community property if bought with community property?
No. SCOTUS held federal law preempted state law in Free v. Bland.
Pension and retirement plan death benefits pass outside of the estate and are not subject to the claims of creditors or successors other than the named beneficiaries (case & RS numbers)
TL James & Co. v. Montgomery.
RS 9:2442(A) & RS 92449(B)
Capacity to receive a donation mortis cause must exist:
at the time of the death of the decedent.
At the time of the death of the decedent, only two children were alive (more born after the decedent’s death). Court held children not yet born at the time of the death are excluded. (Case)
Fisk Guardian v. Fisk, Executors
If a child is conceived after the death of a decedent and later born to a surviving spouse with written permission to use his gametes:
the child is deemed to be the child of the decedent. RS 9:391.1
A juridical person is an entity to which the law attributes personality (code number)
La. CC art 24
Hunting association case. Holding: the association was not a juridical person because they did not hold regular meetings, did not vote on policy, etc.
Ermert v. Hartford Ins. Co.
Incapacity to give - minors under 16
Does not have the capacity to make a donation, either inter vivos or mortis cause except in favor of his children or spouse.
Incapacity to give; minors over 16
He has the capacity to make a donation but only mortis causa. He may make a donation inter vivos in favor of his spouse or children.
