Opening of Succession

Question 1

Opening of succession

Ways

Answer 1

By operation of law; and Judicial opening

Question 2

Opening of succession by operation of law

Transfer of ownership

Answer 2

Ownership transfers to successors immediately at death of decedent
* Exception: ACQUISITIVE PRESCRIPTION –
* – Movables: 10 years;
* – Immovables: 30 years

Question 3

Opening of succession by operation of law

Transmission

Answer 3

Rights transmit to successors immediately at death, despite knowledge or response

Question 4

Opening of succession by operation of law

Doctrine of seizin

Answer 4

“Right to Possess” = Right to Exercise Rights + Continuity of Possession

(1) RIGHT TO EXERCISE RIGHTS: Successors may exercise transmitted rights prior to qualification of succession representative
* Exception: QUALIFICATION OF SUCCESSION REPRESENTATIVE – Subordinates successor’s exercise of right to administration of estate by succession representative

(2) CONTINUITY OF POSSESSION: Successors continue possession of decedent
* Exception: PARTICULAR SUCCESSORS – May commence new possession for purposes of acquisitive prescription

Question 5

Judicial opening of succession

Definition; Purpose

Answer 5

Substantive act consistent with purposes of succession

Purpose: Not required for transfer; Required for probate

Question 6

Judicial opening of succession

Probate

Definition; Prescription

Answer 6

Authentication and administration of testament

Prescribes 5 years from judicial opening of succession

Question 7

Judicial opening of succession

Probate

Succession types

Answer 7

Succession w/ formal administration

Simple succession without adminstration

Small succession

Question 8

DMC / Probate

Prescription to annul testatement

Answer 8

5 years from probate

Question 9

Judicial opening of succession: Probate

Olographic / Notarial testaments

Burden of proof

Answer 9

OLOGRAPHIC:
Must be proven by testimony of two credible witnesses

Burden of Proof:
* Before, OR within 3 months of probate: Proponent of testament
* More than 3 months after probate: Challenger of testament

NOTARIAL:
Self-proving

Burden of Proof:
* Before Probate: Proponent
* After Probate: Challenger

Question 10

Probate

Succession with formal administration

Succession representative: types; requirements; process; Alt.

Answer 10

Types: Intestate – “Administrator” / Testate – “Executor”

Requirements: Good moral character; Resident; Non-felon

Process:
* Appointment
* Submit Descriptive list + Accounting Sheet + Tableau of Distribution
– Descriptive list: “Inventory”, if made by court
* Court approves Tableau of Distribution w/ homologation (rubberstamp)
* File Petition for Possession
* Court issues Judgment of Possession
– Prima facie evidence of ownership; Should be recorded
* Discharge and payment

INDEPENDENT ADMINISTRATOR: Alternative to Representative when demanded by testator or all heirs in agreeance

Question 11

Probate

Simple succession without adminstration

Requirements; Process

Answer 11

Requirements:
INTESTATE: (1) Heirs are competent; (2) Heirs accept; (3) Estate relatively free of debt
TESTATE: (1) Universal & general legatees competent; (2) Legatees agree; (3) No creditor claims

Process:
* Petition to probate a will (if applicable)
* Petition for possession + Affidavits (2) of Death, Domicile, and Heirship + Descriptive list
* Judgment of possession
– Prima facie evidence of heirship; Declarative of title; Not definitive

Question 12

Probate

Small succession

Requirements; Process

Answer 12

Requirements:
(1) Estate $125,000 or less; OR
(2) Decedent’s death more than 20 years before opening

Process: File special affidavit; Petition not required