LA BAR EXAM CODE II: SUCCESSIONS Flashcards
I. What is succession?
A succession is a transmission of decedent’s estate to his successors. Successors can be universal (think: heirs) and succeed to all the decedent’s rights and charges. Particular successors, another type, succeed only to certain rights relating to a thing sold, ceded, or bequeathed to him.
What is intestate succession?
Intestate succession occurs when there is no will, the will is invalid in whole or in part, or the will does not dispose of all the decedent’s property.
What is testate succession?
When the decedent died with a valid will contained in a testament, the succession is testate.
II. Regarding intestate succession, how do you determine who inherits, generally?
Heirs are divided into four classes: descendants, ascendants, surviving spouse, and collaterals. The nearest relative in the highest class is the one who inherits by intestacy.
Regarding intestate succession, how do you determine who inherits separate property? tested often
Children and their descendants inherit to the exclusion of others. If the deceased has no descendants, then parents and siblings (and descendants of siblings by representation) succeed. If the decedent has no surviving descendants, parents, or siblings, the surviving spouse inherits to the exclusion of other ascendants and collaterals. Finally, if no surviving spouse exists, ascendants and more remote collaterals take. If none of these options exist, the estate escheats to the state.
If the decedent dies without any descendants but is survived by a mother or father or both, and a brother or a sister or both or descendants from them then the separate property goes to the sister or brother or their descendants subject to a usufruct in favor of the parent or parents.
Representation is allowed for a predeceased sibling if that predeceased sibling had children of their own.
Regarding intestate succession, how do you determine who inherits community property? tested often
Each spouse owns a one-half share of community property. Thus, if one spouse dies, it does not affect the one-half the other spouse already owns. The decedent’s one-half passes by intestacy to: (i) the decedent’s descendants subject to a usufruct in favor of the surviving spouse; or, if none, (ii) surviving spouse.
Regarding succession, how do you determine the rights of children and other descendants?
Adopted children inherit from their adoptive and biological parents and their relatives, but the biological parents and their relatives cannot inherit from the child.
The shares of deceased children or siblings who would have inherited pass to their surviving descendants by representation (i.e., the surviving descendants step into the shoes of their deceased ancestor).
III. What are some of the most common problems to intestate and testate estates?
The most common problems involve survivorship being presumed when parties perish in a common disaster, (ii) unworthiness which is the killing or attempted killing of a decedent and deprives the right to inherit, (iii) acceptance and renunciation, and, finally, (iv) payment of estate debts.
What is the problem of acceptance and renunciation in succession?
When the decedent dies, the successor has three options: (i) accept the succession; (ii) renounce the succession; or (iii) accept in part and renounce in part.
A formal acceptance is express and in writing or assumes the quality of a successor in a judicial proceeding (e.g., a petition for possession). An informal acceptance is an act that implies intent to accept (e.g., takes possession of the property).
A renunciation must be express and in writing. It does not have to be by authentic act but likewise cannot be merely oral. Watch out for emphatic oral renunciations in fact patterns or likewise, not notarized writings. In both testate and intestate succession, the renouncing heir is treated as having predeceased the decedent. This means for intestate the renounced share goes to the renounced heirs descendants by representation. This means for testate succession the testament will govern where the share goes.
An act of renunciation is acceptance if made for a price.
Once the succession is accepted, the successor is liable for the debts of the estate limited to the value of the property received at the time of the estate.
What are estate debts?
Estate debts include debts incurred by the decedent (e.g., mortgage, credit card bill) and administration expenses. Debts are charged ratably in an order . . .
What is the right of reversion and when does it apply?
The right of reversion provides that to the exclusion of all others, (1) ascendants inherit the (2) immovables given by them to their children when (3) their children die without posterity (children of their own) (4) and the immovable is found in the succession.
