Successions and Donations

Question 1

Intestate succession

Answer 1

someone dying without a will

Question 2

Testate succession

Answer 2

someone dying with a will

Question 3

Descendent

Answer 3

The person who dies, and from whom property comes

Question 4

Estate

Answer 4

the property and liabilities belonging to the person (assets and liabilities) NOT a juridical person

Question 5

Heirs

Answer 5

person/people who inherit the estate

Question 6

Legatees

Answer 6

person/people who inherit testate

Question 7

Forced Heirs

Answer 7

children of the decedent who, at the time of death, are: 23 yrs. old or younger, or permanently incapable of taking care of themselves

can only be disinherited for just cause

Question 8

forced portion

Answer 8

the amount of property the forced heir(s) are entitled to

Question 9

disposal portion

Answer 9

the property the testor can freely disposeof

Question 10

legetime

Answer 10

the amount of property each individual person gets

Question 11

Lines

Answer 11

an heir’s position relative to the descendent

Question 12

Direct Line

Answer 12

People who are immediately above or below you.

(1) Ancestors: People who are immediately above the decedent.
(2) Descendants: People who are immediately below a decedent.

Question 13

Collateral line

Answer 13

not immediately above or below—but share a common ancestor (siblings, cousins)

Question 14

Classes

Answer 14

Groups of heirs who collectively exclude other groups

Question 15

Order of classes in successions

Answer 15

(1) decedents, (2) parents and siblings, (3) surviving spouse, (4) remote ascendents, (5) collaterals

Question 16

Degrees

Answer 16

Art 900 in the civil code—the nearness of blood is important in establishing degrees

Question 17

Direct (degrees)

Answer 17

Count the number of generations from the decedent to the person who is inheriting.

Question 18

Collateral (degrees)

Answer 18

Count up to the common ancestor, and then back down to the person of importance

Question 19

The class of descendants includes all of the following:

Answer 19

(1) the natural children of either parent;
(2) adopted children;
(3) children born out of wedlock whose parentage is established; and
(4) descendants of any of these.

Question 20

Who has the highest priority in succeeding to the property of their ascendants?

Answer 20

Descendants

Question 21

If the decedent is survived by: (1) at least one parent; and (2) at least one sibling or descendant of a predeceased sibling, the surviving sibling(s) or the descendants of predeceased siblings succeed to the

Answer 21

separate property of the decedent as naked owners subject to a usufruct in favor of the surviving parent(s).

If both parents survive the decedent, the usufruct is joint and successive, meaning that when one parent of the decedent dies, the other becomes the sole usufructuary.

Question 22

If the decedent is survived by at least one sibling, or descendant of a predeceased sibling, but leaves no surviving parents, the decedent’s sibling(s) or any descendants representing predeceased siblings succeed to the decedent’s separate property

Answer 22

full ownership.

Conversely, if the decedent is survived by at least one parent but leaves no sibling or descendant of a predeceased sibling, the decedent’s parents succeed to the decedent’s separate property in full ownership.

Question 23

When this class of heirs includes any half-siblings of the decedent, the estate is

Answer 23

first divided into two equal shares, representing the maternal and paternal lines. The decedent’s siblings of the whole blood inherit from both lines, and the decedent’s siblings of the half-blood inherit only from the line of the common parent.

Question 24

If the decedent leaves no surviving descendants, parents, siblings, or descendants of predeceased siblings, who succeeds to his separate property?

Answer 24

The surviving spouse.

Because the surviving spouse succeeds to the decedent’s share of the community property when the decedent has left no living descendants, the surviving spouse in this case would inherit the decedent’s entire estate.

Question 25

If the decedent leaves no surviving descendants, parents, siblings, descendants of predeceased siblings, or spouse, then who succeeds to his separate property?

Answer 25

More Remote Ascendants

a. If the nearest living ascendants in relation to the decedent exist on only one side (i.e., the maternal or paternal side), they inherit the decedent’s separate property by heads.
b. If the nearest living ascendants in relation to the decedent occupy both the maternal and paternal sides and are in the same degree, the property is divided into two equal shares, with one share going to each side. The ascendants on each side take by heads.

Question 26

In the absence of surviving descendants, parents, siblings, descendants of predeceased siblings, spouses, or other ascendants, who succeeds to his separate property?

Answer 26

More Remote Collaterals

Among collateral relatives, the nearest in degree excludes all others.
(1) If more than one collateral relative in the same degree survives the decedent, they take equally and by heads.

Question 27

If there are no heirs eligible to inherit the decedent’s separate property, who succeeds to his separate property?

Answer 27

The state of Louisiana

Question 28

(Devolution of Community Property) If a deceased spouse leaves no descendants

Answer 28

spouses take full ownership

Question 29

(Devolution of Community Property) If a deceased spouse is survived by descendants

Answer 29

children get naked ownership, spouse gets 890 usufruct

Question 30

The 890 usufruct terminates

Answer 30

upon the spouse’s death OR the remarriage of the surviving spouse

Question 31

Security is dispensed with when you’re dealing with an 890 usufruct, unless

Answer 31

the child is a forced heir (then must pay security), or the child is not a descendent of the surviving spouse (child from previous marriage, for example).

Question 32

There are three ways in which an heir may succeed

Answer 32

in your own right
by representation
by transmission

Question 33

A person succeeds in his own right when

Answer 33

by virtue of who you are and where you stand in relation to the decedent

Question 34

A person succeeds by representation when

Answer 34

by virtue of representing someone else. You stand in the place, degree, and rights of another.

Question 35

Representation only works going

Answer 35

down; it never works going up.

Question 36

In the collateral line, representation can only take place in favor of

Answer 36

direct descendants of the decedent’s siblings (i.e., the decedent’s nieces, nephews, and their descendants).

Question 37

A person succeeds by transmission when

Answer 37

deals with people who die after the decedent, but dies before s/he could exercise his/her acceptance of property.

Question 38

If an ascendant gives an immovable to a descendant, and that immovable is found in the decedent’s succession, and the decedent dies without posterity:

Answer 38

the immovable goes back to the estate from which it came

EXAMPLE: If your grandparent gives you a tract of immovable property, that land is found in your succession when you die, and you die without posterity, then that immovable automatically goes back to the grandparent—irrespective of whatever other relations one might have.

Question 39

If the decedent, while he was alive, mortgaged the property, when that property goes back to the ascendant it goes back with

Answer 39

the mortgage on it. The encumbrance remains.

Question 40

A special statutory provision exists to cover circumstances where one spouse dies “rich in comparison with the surviving spouse,” in which case the surviving spouse is entitled to claim a

Answer 40

marital portion from the succession of the deceased spouse.

Question 41

While there is no definitive test to determine whether a spouse is entitled to a marital portion, it will usually be awarded where:

Answer 41

5:1 or greater is “rich enough.”

Question 42

if the decedent died without children, then the marital portion is

Answer 42

1/4 claim against the estate

Question 43

if the decedent is survived by three or fewer children, the marital portion is

Answer 43

1/4 interest in usufruct

Question 44

if the decedent is survived by more than three children, the marital portion is

Answer 44

a “child’s share” in usufruct

Question 45

A marital portion may not exceed:

Answer 45

1,000,000 (bright-line limit by the Code).

Question 46

A legacy left by the decedent to the surviving spouse and payments due to the surviving spouse as a result of the death

Answer 46

deduct the legacy from the marital portion

Question 47

Succession occurs upon

Answer 47

the death of the decedent

Question 48

Death means

Answer 48

irreversible stopping of circulatory and respiratory function

Question 49

All rights vest in the heir at

Answer 49

the time of the decedent’s death; and from that moment, the heir may file formal succession proceedings.

Question 50

Absent Persons

Answer 50

An absent person is one that has no representative in the State of Louisiana, and whose whereabouts cannot be ascertained by diligent effort. After 5 years, he can be declared dead.

There is a special statute that says if someone has disappeared after Hurricanes Katrina or Rita, then the relevant period of time is not 5 years, but 2 years.

Question 51

Disappearance

Answer 51

If someone has disappeared under circumstances in which his death seems certain, then we can treat that person as dead, even without having them considered an absent person and running the 5 year clock.

Question 52

Simultaneous Death

Answer 52

when two people die in the same accident, you presume they died at the exact same time

Question 53

Capacity to Succeed

Answer 53

1. A successor need only be existence at the time of the decedent’s death in order to succeed.
2. A child who has been conceived but not yet born at the time of the decedent’s death is considered to be in existence for the purposes of succession.
3. If an individual has died and before his death he executed a written authorization for his spouse to use his frozen gametes after his death, even though that subsequently born child wasn’t even conceived at the time of the husband’s death, a special statute allows that child to inherit as if he did have capacity at the time of the husband’s death—as long as that child is born within 3 years of the date of death of the relevant party.

Question 54

Declaration of Unworthiness

Answer 54

Capacity may be lost where a successor is declared unworthy.

2. A successor will be declared unworthy if:
   a. he is convicted of a crime involving the intentional killing, or attempted killing, of the decedent; or
   b. s/he is judicially determined (not necessarily in a criminal proceeding) to have participated in the unjustified killing or attempted killing of the decedent

Question 55

reconciliation

Answer 55

A successor will not be declared unworthy if he can prove reconciliation with or forgiveness by the decedent

Question 56

As a result of a successor being declared unworthy

Answer 56

a. the successor’s rights devolve as if the unworthy successor had predeceased the decedent; and
b. if the unworthy successor’s child takes in his place, neither parent can claim a legal usufruct upon the property.

Question 57

An action to declare a successor unworthy may be brought only by

Answer 57

a person who would succeed in the place of or in concurrence with the successor to be declared unworthy, or by one who claims through such person

Question 58

An action to declare a successor unworthy must be brought within

Answer 58

5 years from probate (testate); 5 years from the death of the decedent (intestate)

Question 59

Judgment of Possession: Third parties who acquire immovables by onerous title from a successor who is recognized in a judgment of possession are protected after

Answer 59

2 years from unrecognized successors popping up and saying they have rights.

Question 60

Is a successor obligated to accept his rights to succeed?

Answer 60

No. He may accept all rights, renounce all rights, or accept some rights and renounce others.

Question 61

A successor who is a minor is deemed to

Answer 61

accept his succession rights.

a. A minor’s legal representative may renounce on behalf of the minor when expressly authorized by the court.

Question 62

Can acceptance take place before the decedent’s death?

Answer 62

no.

a. In addition, the successor must have knowledge of: his rights as a successor
b. A premature acceptance or renunciation is absolutely null.

Question 63

Acceptance can be

Answer 63

formal or informal

Question 64

Formal acceptance occurs where

Answer 64

stated in a writing or judicial proceeding

Question 65

Informal acceptance occurs where

Answer 65

when a successor performs some act to indicate his or her acceptance (selling the property, for example)

Question 66

Renunciation must be

Answer 66

express AND in writing

Question 67

Collation involves

Answer 67

the process of figuratively (or actually) returning any gifts received by an heir or legatee within 3 years of the decedent’s death to the mass of succession in order to calculate the forced and disposable portions.

Question 68

reduction is

Answer 68

the means by which an omitted forced heir collects his forced portion and defeats a decedent’s intention to unlawfully disinherit a forced heir

Question 69

collation is

Answer 69

the means by which a forced heir gives effect to the decedent’s intent that he share equally in the estate.

Question 70

The policy underlying collation is founded upon two presumptions

Answer 70

a. that the decedent meant to treat his children equally with regard to dividing their inheritance; and
b. any gifts the decedent gave to his children prior to death were given in advance of succession.

Question 71

Collation is presumed unless

Answer 71

it is expressly waived in the appropriate form

Question 72

Children, or grandchildren coming to the succession of their parents or other ascendants, must collate

Answer 72

what they have received from the decedent by donation inter vivos, directly or indirectly.

a. Failure to collate results in these successors being barred from claiming the legacies made to them by such ascendants, unless the donations and legacies have been made to them expressly as an advantage over their coheirs and besides their portion.
b. The declaration that a gift or legacy is made as an advantage or extra portion must be unequivocal, and may be made (1) in the instrument of donation, (2) in the act of donation, (3) in an authentic act after the donation is made, or (4) in the will

Question 73

A grandchild, to whom a gift was made or a legacy left by his grandparent after the death of his father or mother, must collate when

Answer 73

he is called to the inheritance of the grandparent, jointly with the other grandchildren, or by representation.

Question 74

Gifts made from a grandparent to a grandchild during the parent’s life

Answer 74

are exempt from collation

Question 75

Collation is due upon donations inter vivos made within

Answer 75

3 years of the donor’s death

a. in order to provide for their descendant who would eventually take in their succession; or
b. for the payment of that descendant’s debts.

Question 76

The following expenditures are exempt from collation

Answer 76

a. expenses for the heir’s board, support, education, and apprenticeship;
b. manual gifts (DOESN’T mean corporal movables generally, they mean christmas gifts that are normally given “customary gifts”)

Question 77

Who may demand collation?

Answer 77

Only forced heirs may demand collation.

a. Forced heirs of the first degree can demand collation.
b. Representatives of forced heirs (grandchildren whose parents have predeceased them – this point is debatable)

Question 78

There are two methods of making collations

Answer 78

in kind and by taking less

Question 79

Collation takes place in kind when

Answer 79

you physically give the property back

Question 80

Collation is made by taking less when

Answer 80

your advance is factored in to whatever else you get

Question 81

(Collation) A donee in possession of an immovable can choose to either

Answer 81

make the collation in kind or by taking less

Question 82

A donee who collates in kind is entitled to reimbursement by his coheirs for certain expenses, including

Answer 82

(a) those necessary for the preservation of the property; and
(b) those which have improved the property, in proportion to its increase in value caused by such improvements.

Question 83

No reimbursement is due for works made for

Answer 83

the mere pleasure of the donee, but the donee has the right to remove such works so long as he can do so without damaging the property.
EXAMPLE: An in-ground pool would probably be classified as an improvement to the estate, but an above-ground pool, depending on its construction, might be classified as a removable work made for the mere pleasure of the donee.

Question 84

Donees of movables may only make collation by

Answer 84

taking less

Question 85

Forced heirs of the first degree can demand collation of gifts given by a decedent to his children or grandchildren within 3 years of the date of death. The gift is valued at:

Answer 85

the date of donation (not death)

Question 86

The right to demand collation is personal, as such it is subject to

Answer 86

prescription – forced heirs must demand collation within ten years, but if an action for collation is barred if the heir unconditionally accepts a succession and obtains a judgment putting him in possession of the property.

Question 87

two types of donations

Answer 87

donation inter vivos and donation mortis causa

Question 88

A donation inter vivos

Answer 88

made between living persons—donor gratuitously divests himself of ownership for another person

Question 89

What is required for an effective donation inter vivos

Answer 89

act of donation
act of acceptance
the donation must be irrevocable and effective at the present time (doesn’t have to transfer immediately)

Question 90

A donation mortis causa is

Answer 90

upon death. another word for a will. It is not a contract; it is a juridical act.

Question 91

Can you revoke a donation mortis causa?

Answer 91

Yes. You can revoke up until the event of the donor’s death

Question 92

Unenforceable gratuitous transfers

Answer 92

certain designations on bank accounts—joint accounts; pay on death accounts. this is not an effective gratuitous transfer

Question 93

requirements for making a donation

Answer 93

must have: capacity to donate, capacity to accept, requisite formalities are followed, and no substantive limitations are allowed.

Question 94

The only real requirement for a donee is

Answer 94

that s/he exists

Question 95

An unborn child’s capacity to receive a donation inter vivos requires

Answer 95

that (1) the child is in utero, and (2) born alive.

Question 96

Capacity to donate inter vivos must exist at:

Answer 96

the time of donation

Question 97

Capacity to donate mortis causa must exist at

Answer 97

the time of execution of the testimate

Question 98

Capacity to donate requires that the donor be able to comprehend generally, and

Answer 98

s/he must understand the nature and consequences of the transaction

Question 99

A minor under 16 years of age does not have capacity to make a donation, except

Answer 99

in favor of his spouse or children

NOTE: After becoming age 16 but prior to reaching age 18 (i.e., the age of majority), a minor has capacity to make a donation mortis causa to anyone, but he may make a donation inter vivos only in favor of his spouse or children.

Question 100

A donation which is the product of fraud, duress, or undue influence will be

Answer 100

declared null

Question 101

Fraud defined

Answer 101

the donor has capacity (as does the donee) but the donee has lied to the donor and it is that lie that causes the donor to make the donation

Question 102

Duress defined

Answer 102

(same as contract) force used to cause a reasonable fear of force, injury to self or reputation or property. (objective and subjective determination)

Question 103

Undue Influence defined

Answer 103

(doesn’t apply in the general contract context). Only in a donation context. Can negate the donation upon proof that it was the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee for that of the donor. Basically, you’ve done something to influence the donor so much that it was your decision, not that of the donor.

Question 104

How to determine undue influence

Answer 104

(1) susceptibility (low capacity), (2) opportunity for influence, (3) person who is exerting influence the type to do this kind of things, (4) result is achieved.

Question 105

Proof of fraud, duress, or undue influence requires a showing of

Answer 105

clear and convincing evidence

Question 106

However, a showing based on a preponderance of the evidence is sufficient if, at the time the donation was made

Answer 106

(1) a confidential relationship (e.g., attorney-client, physician-patient) existed between the donor and the alleged wrongdoer; and
(2) the alleged wrongdoer was not then related to the donor by affinity, consanguinity, or adoption.

Question 107

If it is possible to sever a provision that is declared null due to fraud, duress, or undue influence, the remaining provisions in the donation or testament will be

Answer 107

given effect. Otherwise, the entire act of donation or testament will be nullified.

Question 108

Forced heirs are

Answer 108

descendants of the first degree, who at the time of death of the decedent are 23 years of age or younger, or those permanently incapable of taking care of their person or administering their estate, either because of a mental or physical incapacity.

Question 109

If, at the time of death of the decedent, according to medical documentation (forced heirs)

Answer 109

an inherited and incurable disease that may render him or her medically incapable anytime in the future, even if they are capable of caring for their person or estate at present.

Question 110

Grandchildren as forced heirs

Answer 110

in limited instances. Predeceased parents: forced heir by representation, but only if the pre-deceased parent would have been 23 or younger at the time of the grandparent’s death (fictitiously age the deceased parent)

Permenant incapability: regardless of the parent’s would-be age, if the grandchild has a condition that renders him/her incapable of caring for him/herself or her/his estate.

Question 111

Amount of Forced Portion if the decedent leaves at his death no forced heir

Answer 111

that person can freely dispose of his estate

Question 112

Amount of Forced Portion if the decedent leaves at his death one forced heir

Answer 112

the forced portion is 1/4; 3/4 disposible

Question 113

Amount of Forced Portion if If the decedent leaves at his death two or more forced heirs

Answer 113

1/2 forced portion (just count heads)

EXAMPLE: A dies, and he has two kids, B (19) and C (16). The disposable portion is 1/2, and the forced portion is 1/2. B and C split the disposable portion by head, and each has a legitime of 1/4.

Question 114

Amount of Forced Portion if If the decedent leaves at his death five or more forced heirs

Answer 114

each forced heir can receive no more than he would receive if the decedent died intestate.
EXAMPLE: Joy leaves 5 living children at her death, only one of which (Kate) is less than 24 years old. Kate’s legitime is not 25% but rather 20%, since that is the amount to which she would be entitled under intestate succession.

Question 115

Generally, a legitime may consist of

Answer 115

a. full ownership;
b. naked ownership subject to a usufruct in favor of the decedent’s surviving spouse (effective until the surviving spouse dies or remarries); or
c. property placed in a trust, but only when the forced heir is the principal beneficiary.
2. No charges, conditions, or burdens may be imposed on the legitime except those expressly authorized by law.

Question 116

Active Mass Calculation

Answer 116

For the purpose of calculating the forced and disposable portions, and reductions to which donations are subject, start with the value of the entire estate (excluding insurance policies and retirement benefits), add any donations inter vivos made within 3 years of the decedent’s death, and then subtract the estate’s debts.

Question 117

Donations mortis causa are reduced before donations inter vivos, unless

Answer 117

the testator has expressly declared otherwise in his testament.

Question 118

When the property of the estate is not sufficient to satisfy the forced portion, a forced heir may recover

Answer 118

the amount needed to satisfy his legitime from the donees of donations inter vivos made within 3 years of the date of the decedent’s death, beginning with the most recent donation and proceeding successively to the most remote.

Question 119

If a donee from whom recovery is due is insolvent

Answer 119

skip the recipient and move on

Question 120

reduction is subject to what rule

Answer 120

the two-thirds rule

Question 121

The two-thirds rule is

Answer 121

The value of a remunerative donation is only included in the calculation of the forced portion if the value of the remunerated services is less than two-thirds the value of the property donated at the time of the donation, in which case the gratuitous portion is included in the calculation and is subject to reduction.

Likewise, the value of an onerous donation is only included if the value of the charges is less than two-thirds the value of the property donated at the time of the donation, in which case the gratuitous portion is included and subject to reduction.

Question 122

An action brought by a forced heir to reduce an excessive donation must be brought within

Answer 122

5 years

Question 123

A forced heir may only be deprived of his legitime if

Answer 123

he is disinherited by the testator, for just cause

Question 124

Just cause for a parent to disinherit a child is only satisfied if the child

Answer 124

a. has raised his hand to strike one of his parents, or has actually struck the parent;
b. has been adjudged guilty of cruel treatment, a crime, or a grievous injury against one of his parents;
c. has attempted to murder one of his parents;
d. without any reasonable basis, has accused one of his parents of committing a crime carrying a punishment of life imprisonment or death;
e. has used any act of violence or coercion to hinder one of his parents from making a testament;
f. being a minor, has married without the consent of his parents;
g. has been convicted of a crime carrying a punishment of life imprisonment or death; or
h. after attaining the age of majority and knowing how to contact his parents he has not done so for 2 years, without just cause

Question 125

A grandparent may disinherit a grandchild for any of the same reasons as a parent, whether the child’s act was against a parent or the grandparent, except

Answer 125

marrying without a grandparent’s consent

Question 126

A disinherison must be made

Answer 126

expressly, clearly identifying the person disinherited in a testament.

Question 127

The testator must express in the instrument the reason, facts, or circumstances that constitute the cause for the disinherison; otherwise

Answer 127

the disinherison is null.

Question 128

a. These reasons, facts, or circumstances are presumed to be true.
b. A disinherited heir’s defenses include

Answer 128

(1) rebutting by a preponderance of the evidence; (2) reconciliation (Unlike the other defenses, this defense is subject to the heightened clear and convincing evidence standard), (3) inability of the disinherited heir to understand the impropriety of his behavior due to age or mental capacity.

Question 129

Donation Omnium Bonorum

Answer 129

donation of all of your goods (inter vivos)

Such an attempted donation is void.
a. Some courts have ruled that only the donor is able to raise the idea of a donation omnium bonorum to presumably get the property back, while others have ruled that forced heirs are allowed to do so

It is inperscriptable

Question 130

A person may not make a donation inter vivos consisting of all of his property; the donor must retain at least

Answer 130

enough for his subsistence.

Question 131

If a donation is conditional, and that condition is impossible, illegal, or immoral, the condition is treated

Answer 131

as if the condition was not written. You can enforce the donation, but just read out the inpermissible condition

Question 132

If the condition is so intertwined with the donor’s purpose of making the donation

Answer 132

you can’t just read out the condition, the entire donation is null.

Question 133

Three types of offending conditions

Answer 133

nonalienation clause, prohibition on marriage, no contest clause

Question 134

nonalienation clause

Answer 134

“Blackacre so long as you never sell it.” Not allowed. A court said 10 years was too long of a prohibition even.

Question 135

Prohibition on marriage

Answer 135

“you can have this property so long as you never marry” not ok; “you can have this so long as your not married at the time of my death.” “you can have this so long as you don’t remarry,” also ok.

Question 136

no contest clause

Answer 136

“if you challenge the will, you get nothing” ok; “if anyone challenges the will, then no one gets anything.”

Question 137

Prohibited Substitution

Answer 137

A disposition is null (unless in a trust) in which the donor attempts to give full ownership to a first donee (the institute), with a charge to preserve the thing and deliver it to a second donee (the substitute) at the institute’s death.

Thus, a charge for the institute to preserve the thing and deliver it to the substitute before the institute’s death would be permissible.

The effect of a prohibited substitution is to invalidate the entire disposition.

Question 138

Residual Substitution

Answer 138

you can do this: you can have full ownership of the thing, but if there is any left over when you die, it goes to ___. Apparently that’s fine.

Question 139

Vulgar Substitution

Answer 139

A disposition by which a third person is called to take a gift or legacy in case the donee or legatee does not take it is a permissible substitution.

Question 140

Short-Term Survivorship Clause

Answer 140

A testator may impose a suspensive condition upon a legatee or a trust beneficiary stating that he must survive the testator for a stipulated period (of no more than 6 months), in default of which a third person is called to take the legacy.

Question 141

A valid donation inter vivos is subject to the following requirements

Answer 141

a. the act must be at least partly gratuitous;
b. the donor must not expect payment in return;
c. the transfer must be made at the present time;
d. the act must be irrevocable; and
e. the donee must convey acceptance during the lifetime of both the donor and the donee.

Question 142

A gratuitous donation is

Answer 142

grandma sends you $20 in a birthday card. Donation made out of kindness

Question 143

Mixed motive transaction

Answer 143

trying to get something, but giving a payment above and beyond that

Question 144

Two-thirds rule

Answer 144

If an obligation imposed on the donee results in a material advantage to the donor, and at the time of the donation, the cost of performing the obligation is at least two-thirds of the value of the thing donated, then the contract is considered a bargained-for exchange and not a donation inter vivos.

Question 145

An onerous donation is one that is

Answer 145

burdened with charges imposed on the donee

Question 146

A remunerative donation is

Answer 146

instead of imposing charges in the future, this is payment for something done in the past.

Question 147

Formalities for a donation of a corporal immovable

Answer 147

authentic act, identification

Question 148

Formalities for a donation of a corporal movable

Answer 148

The donation of a corporeal movable (or manual gift) may be made by delivering the thing to the donee without any other formality.

Question 149

Formalities for a donation of an incorporal movable

Answer 149

The donation of an incorporeal movable of the kind that is evidenced by a certificate, document, or other writing may be made by authentic act or by other applicable rule or law.

Question 150

Authentic Act

Answer 150

Unless otherwise expressly permitted by law, a donation inter vivos must be made by authentic act, else it will be declared null.

Question 151

Identification

Answer 151

The donor, donee, and thing donated must be clearly described, either in the act of donation itself or from information contained in it, as clarified by extrinsic evidence if necessary.

Question 152

A donation inter vivos has no effect until

Answer 152

it is accepted by the donee

Question 153

Acceptance can be made

Answer 153

a. in the act of donation;
b. subsequently in writing; or
c. by possessing a donated corporeal movable.

Question 154

Acceptance must be made effective during

Answer 154

the lifetime of the donee or donor

If the donee dies without having accepted the donation, his successors may not accept for him

Question 155

The rule that donations inter vivos must be irrevocable is subject to certain exceptions such as

Answer 155

ingratitude

nonfulfillment of conditions

Question 156

Ingratitude sufficient to render a donation revocable occurs where

Answer 156

(1) the donee has attempted to take the life of the donor; or
(2) the donee has been guilty towards the donor of cruel treatment, crimes, or grievous injuries.

Question 157

Revocation based on ingratitude is subject to a prescriptive period of

Answer 157

one year from the date the donor knew or should have known of the act of ingratitude.

Question 158

Dissolution of a donation inter vivos can also occur by consent of the parties or by judicial decree when

Answer 158

a condition that the donee has the power to perform or prevent goes unfulfilled, or when a condition depends on the performance of a charge by the donee and the donee fails to perform.

Question 159

An action to dissolve a donation for nonperformance must be brought within

Answer 159

5 years of non-performance

Question 160

disposition mortis causa may be made only in the form of a testament authorized by law

Answer 160

olographic (drawn on a napkin, for example)

notorial will

Question 161

testament must be executed by

Answer 161

the testator, and not by his mandatary

Question 162

A testator may delegate to his executor the authority to

Answer 162

allocate specific assets to satisfy a legacy expressed in terms of a value or a quantum, including a fractional share.

Question 163

Failure to adhere to the requisite formalities for the execution of a testament render the testament

Answer 163

absolutely null

Question 164

Capacity must exist at the time

Answer 164

the testiment is made/executed

Question 165

Testamentary intent requires

Answer 165

that the person needs to want that particular document will serve as the will

Question 166

Testamentary intent must exist

Answer 166

at the time the instrument is executed

Lack of testamentary intent renders a testament completely invalid

Question 167

Testaments may only take on two forms

Answer 167

olographic and notarial

Question 168

olographic testament is

Answer 168

the lay person’s will

Question 169

the will must be entirely written

Answer 169

the court will excise the preprinted text

Question 170

The signature must appear

Answer 170

at the very end of the document

Question 171

requirements of an olographic testiment

Answer 171

entirely written
signature at the end
the date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary

Question 172

Additions and deletions on the testament may be given effect only if

Answer 172

they are made in the testor’s handwriting

Question 173

notorial testiment’s validity

Answer 173

are presumed

Question 174

the testator knows how to sign his name and to read, and is physically able to do both, then, in the presence of a notary and two competent witnesses, the testator must

Answer 174

(1) declare or signify to them that the instrument is his testament; and
(2) sign his name at the end of the testament and on each other separate page

The testament must be dated. The date appearing on the testament should indicate the day on which the document was singed by the testator and witnesses.
c. In the presence of the testator and each other, the notary and the witnesses must sign and date an attestation clause certifying the proper execution of the testament.

Question 175

Substantial Compliance

Answer 175

If we can, we will give force of the will so long as they substantially complied with the rules. This works only for very minor deviations, e.g. forgetting to date the attestation clause, but you did date the rest of the will

Question 176

person is generally competent to act as a witness to a testament unless

Answer 176

he is insane, blind, unable to sign his name, or under 16 years of age.

Question 177

If a subscribing witness or the notary is a legatee:

Answer 177

it doesn’t affect the will’s legitimacy, but rather the legatee’s ability to inherit. his or her inheritance is excised.

If the witness would be an heir in intestacy, the Code dictates that that person allows that person to inherit the lesser of his intestate share

If a legacy is in favor of the spouse of a subscribing witness, the legacy is invalid, but the spouse is likewise entitled to the lesser of his intestate share or the legacy in the instrument if he would have been an heir in intestacy.

Question 178

Rule of interpretation

Answer 178

The cardinal rule when interpreting a testament is that the intent of the testator controls.

2. If the language of the testament is clear and unambiguous, it must be followed according to its written terms, without reference to any extrinsic evidence.
3. If a testament contains contradictory provisions, the one written last prevails.
   a. Nevertheless, if a testament contains a legacy of a collection or a group of objects and also a legacy of some or all of the same objects, the legacy of some or all of the objects prevails

Question 179

A testator can revoke his entire testament by doing any of the following

Answer 179

a. physically destroying the testament, or having it destroyed at his direction;
(1) The physical destruction of one copy of the testament, where multiple copies exist, raises a presumption in favor of revocation
b. declare it in a subsequent testament or authentic act
c. executing a document entirely written and signed by the testator in his own handwriting that identifies and clearly revokes the testament.
d. you can also just write revoked on the instrument

Question 180

A testator can revoke a single legacy or other testamentary provision by doing any of the following

Answer 180

a. so declaring in a subsequent testment;
b. making an incompatible disposition or provision in a subsequent testament;
c. making a subsequent inter vivos disposition of the thing that is the object of the legacy, and not reacquiring it; or
d. clearly revoking the legacy or provision by a signed writing on the testament itself

Question 181

When a married testator gets divorced, and is not married to that spouse at the time of his death, what happens to legacies in favor of the former spouse

Answer 181

any legacies in favor of the former spouse are revoked by operation of law, unless the testator provides a clear intent to the contrary.

Question 182

Any other modification of a testament, not involving revocation or revival, must be

Answer 182

in one of the forms prescribed for testaments.

Question 183

A legacy is universal if

Answer 183

all or a balance of the estate (after particular legacies are deducted) goes to a particular person. IF there is a general legacy, there can be no universal legacy

Question 184

A legacy is particular if:

Answer 184

generally being legacies of individual items

Question 185

A legacy is general if

Answer 185

a fraction, portion, or percentage of the estate, or the remainder thereof

Question 186

A disposition of property expressly described by the testator as all, a fraction of, or a certain proportion of separate or community property, movable or immovable property, or corporeal or incorporeal property, is also a

Answer 186

general legacy

Question 187

When a legacy is given in favor of more than one person, it is classified as

Answer 187

separate

Question 188

separate when the testator assigns shares; when the testator does not assign shares, it is classified as

Answer 188

joint

Question 189

A legacy will lapse when

Answer 189

a. the legatee predeceases the testator;
b. the legatee is incapable of receiving at the death of the testator;
c. the legacy is subject to a suspensive condition which can no longer be fulfilled, or the legatee dies before fulfillment of the condition;
d. the legatee is declared unworthy;
e. the legacy is renounced;
f. the legacy is declared invalid; or
g. the legacy is declared null (e.g., for fraud, duress, or undue influence).

Question 190

Anti-lapse rule

Answer 190

Overrides all other anti-lapse rules, but only applies when the original legate is either a child or sibling of the testor, or the child of the descendant of the testor’s child or sibling. If that occurs, accretion takes place by roots in favor of the legatee’s decedents in existence at the time of the decedent’s death.

Question 191

If a joint legatee predeceases the testator, the surviving legatees take

Answer 191

the legacy in full ownership and in equal proportions.

Question 192

Under the statutory scheme, the general rule is that the lapse of a particular or general legacy accretes to the successor who

Answer 192

have received the thing had the legacy not been made.

Question 193

If the statutory rules do not cause a lapsed particular or general legacy to be disposed of, they pass

Answer 193

proportionally to the universal legatees

Otherwise, they devolve by intestacy

Question 194

When extinction occurs, the legatee to whom the legacy was intended to favor is entitled to:

Answer 194

a. any part of the property that remains;
b. uncollected insurance proceeds attributable to the loss; and
c. the testator’s right of action against any person liable for the loss.

Extinction does not occur where the property constituting the legacy has been transformed into a similar object without an act of the testator.

Question 195

Priority of Disbursements

Answer 195

1. Payment of estate debts and satisfaction of the legitime occur before the disbursement of legacies.
2. Absent a contrary testamentary provision, particular legacies must be discharged in preference to general and universal dispositions.

Question 196

If the estate is insufficient to discharge all bequests, absent a contrary preference in the testament, the order of disbursements is as follows:

Answer 196

a. first, legacies of specific things;
b. second, legacies of groups and collections of things; then
c. any remaining property is applied toward the discharge of legacies of money, divided among the legatees in proportion to the amounts of their legacies.

Question 197

All legacies, whether universal, general, or particular, include the

Answer 197

fruits and products attributable to them from the date of the testator’s death, subject to administration of the succession.

Question 198

Legacies of a specified amount of money begin to accrue interest at a reasonable rate beginning

Answer 198

one year after the date of the testate’s death

If, however, the legacy is subject to a lifetime usufruct of a surviving spouse, or is held in trust subject to an income interest for life to a surviving spouse, interest accrues from the date of death.

Question 199

A trust without a trustee

Answer 199

A trustee technically does not need to accept the trust property for which he has title for the creation of the trust.

b. The trustee thereafter needs to accept at some point, but he can do so either in the trust instrument or subsequently in writing after a reasonable period of time.
c. The trustee’s acceptance is retroactive to the moment of creation of the trust.
d. A trust will not fail for want of a trustee.
(1) Generally, the court will appoint a trustee if no trustee is designated, or if the designated trustee is incompetent, fails to survive the settlor, or otherwise fails to qualify.

Question 200

What can be trust property?

Answer 200

Any identifiable property right that is transferable and capable of ownership may generally constitute trust property.

Question 201

A Forced Heir’s Legitime can be placed in a trust, subject to certain requirements

Answer 201

b. The forced heir must have access not only to the principal, but also to the income of the property.
c. If a forced heir’s legitime is put in trust, the trustee must pay out income to the forced heir after considering other means of support and maintenance the forced heir may have over the year as is necessary for his health maintenance, support, and education.
d. The forced heir must receive the principal free of trust at the termination of the trust, or at least the portion of the trust that affects his legitime.
e. A forced heir’s legitime can be burdened with a usufruct in favor of a surviving spouse.
(1) It can also be burdened with an income interest in favor of the surviving spouse of the decedent.
f. The term of the trust cannot exceed the life of the forced heir beneficiary, except that it can be subject to a lifetime interest in favor of the surviving spouse.

Question 202

The settlor is

Answer 202

the person who creates the trust (can have more tha on in an inter vivos trust)

Question 203

The trustee acquires title to the trust property and holds it for

Answer 203

the benefit of the beneficiary.

Question 204

Only the following may serve as trustees

Answer 204

a. an individual who is a United States citizen with capacity to contract;
b. a bank, financial institution, or trust company organized under the laws of any U.S. state, or under federal laws; or
c. a nonprofit corporation, if the trust is for mixed or charitable purposes.

Question 205

A trust will not fail for lack of a trustee unless

Answer 205

the settlor specifies that the existence of the trust is dependent on acceptance by the named trustee.

Question 206

A trustee can be involuntarily removed for

Answer 206

sufficient cause that he is breaching his fiduciary obligations.

Question 207

A corporate trustee may be removed upon

Answer 207

petition of the beneficiaries that it is in the best interests of the beneficiaries as a whole, and that another corporate trustee is willing to take over.

Question 208

A trustee is entitled to compensation as set forth in the trust instrument. If no amount is specified, he is entitled to

Answer 208

compensation that is reasonable under the circumstances.

Question 209

Trustees are also entitled to indemnification from the trust estate for

Answer 209

expenses properly incurred in administering the trust.

Question 210

Beneficiaries are

Answer 210

the person for whose benefit the trust is created

Question 211

Persons designated as beneficiaries may be:

Answer 211

a. natural persons;
b. corporate entities;
c. partnerships; or
d. other legal entities having the power to receive property.

Question 212

Beneficiaries of a trust must be in being and objectively ascertainable from the trust instrument, starting

Answer 212

at the time of the trust’s creation

Question 213

Renunciation - inter vivos trust requires

Answer 213

an authentic act – creditors cannot accept on his or her behalf

Question 214

Renunciation - testamentary trust requires

Answer 214

renounce the same way you do any other inheritance – creditors can accept on his behalf, if the renunciation operates to their detriment

Question 215

Income beneficiaries get the benefit of

Answer 215

the fruits of the principle

Question 216

concurrent vs successive beneficiaries

Answer 216

concurrent - people who receive income presently
successive - when x dies, income beneficiary becomes Y
NOTE: You cannot have successive principle beneficiaries

Question 217

The timing of the distribution is set by the settlor, or the settlor can leave it to the trustee’s discretion. If no provision is made in the trust document

Answer 217

the default rule is that income is paid every six months

Question 218

If there are multiple income beneficiaries and one of them dies, the income goes to the other income beneficiaries, unless

Answer 218

the descendants of the income beneficiaries are also principal beneficiaries, in which case the income goes to the principal beneficiaries.

Question 219

Principle beneficiaries

Answer 219

they are the owners of the underlying property

Question 220

The general rule for the death of a principal beneficiary is

Answer 220

his interest vests in his heirs or legatees

Question 221

Substitute principal beneficiaries may take the principal if

Answer 221

the original principal beneficiary dies during the term of the trust without descendants.

Question 222

When a forced heir is involved, for a substitute principal beneficiary to take

Answer 222

the original principal beneficiary must die during the term intestate and without descendants.

Question 223

Under a spendthrift trust, the beneficiary is not able to voluntarily or involuntarily alienate his interest, except as to:

Answer 223

(1) creditors of the beneficiary who may have rights based upon alimony or maintenance;
(2) creditors who have supplied necessary services or necessary supplies for a beneficiary;
(3) creditors of damages arising as a result of a felony criminal offense that the beneficiary has been convicted of or pled guilty to.

Question 224

If there is a term to the trust, generally that will govern unless

Answer 224

it goes above the cap or ceiling.

Question 225

If both the income beneficiaries and the settlors are humans, the maximum duration of a trust is:

Answer 225

the death of the last income beneficiaries or 20 years after the death of the last settlor, which ever occurs last

Question 226

If none of the settlors are humans but the income beneficiaries are humans, the maximum duration of a trust is:

Answer 226

the death of the last surviving income beneficiary or 20 years after the creation of the trust, whichever is longer

Question 227

If there are no human income beneficiaries but there are human settlors, the maximum duration a trust is:

Answer 227

20 years from the date of the death of the last surviving settlor

Question 228

If neither the income beneficiaries nor the settlors are human, the maximum duration of a trust is:

Answer 228

50 years from the creation of the trust

Question 229

If no term of the trust is stipulated, then

Answer 229

1. The trust terminates at the death of the last surviving income beneficiary who is a natural person.
2. If there are no human income beneficiaries but there are human settlors, the maximum duration a trust is 20 years from the date of the death of the last surviving settlor.
3. If neither the income beneficiaries nor the settlors are human, the maximum duration of a trust is 50 years from the creation of the trust.

Question 230

The powers of a trustee to perform his duties may be

Answer 230

a. derived from the trust instrument (either expressly or by implication);
b. granted by statute;
c. implied in law as necessary or appropriate to accomplish the trust’s purposes; or
d. granted by the court upon petition.

Question 231

A trustee’s actions pertaining to matters within his discretion are generally not subject to attack or court control unless

Answer 231

he abuses his discretion

Question 232

Unless expressly precluded by the trust instrument, a trustee has the power, among other things, to

Answer 232

a. incur reasonable expenses that are necessary to maintain the trust property;
b. sell or lease trust assets;
c. mortgage or pledge trust property;
d. settle or abandon trust claims; and
e. exercise all stock powers.

Question 233

A trustee has no implied authority to invade trust principal for a beneficiary who has merely the right to

Answer 233

receive income from the trust.

Question 234

The court may authorize a trustee to pay principal from the trust property as is necessary for support, maintenance, education, medical expenses, or the welfare of beneficiaries, provided in doing so he’s not

Answer 234

impairing the interests of other beneficiaries.

Question 235

The trust instrument may specifically grant an invasion power if:

Answer 235

(1) the income is necessary for the health, education, maintenance, and support of an income beneficiary; or
(2) the same party is both principal and income beneficiary.

Question 236

If a forced heir’s legitime is subject to a trust, then the principle is not able to be invaded and paid out to someone else as payment because

Answer 236

the forced heir must eventually be given his/her legitime in full ownership (all of it)

Question 237

Duties of a Trustee

Answer 237

Duty of Care and the duty of loyalty

Question 238

Duty of care

Answer 238

the trustee must be a prudent administrator of the trust, and he must be loyal (no self dealing)

Question 239

Duty of loyalty

Answer 239

cannot make an investment or enter contracts on behalf of the trust purely that favor the trustee (no self-dealing)

Question 240

a. As a general rule, a trustee may not delegate to another the performance of his duties.
b. A trustee may delegate

Answer 240

investment and management decisions

Question 241

In connection with a permitted delegation, the trustee must exercise reasonable care, skill, and caution in:

Answer 241

(1) selecting the agent;
(2) establishing the scope and terms of the delegation, consistent with the purposes of the trust instrument;
(3) reviewing periodically the actions of the agent; and
(4) remedying any breaches of the agent’s duties discovered by the trustee.

Question 242

Upon request, the trustee must provide to the beneficiary complete and accurate information as to

Answer 242

the nature and amount of the trust property, and permit him to inspect the subject matter of the trust, and documents relating to it.

Question 243

Modern Portfolio Theory

Answer 243

A trustee’s investment and management decisions with respect to individual assets are evaluated not in isolation, but in the context of the trust portfolio as a whole and as part of an overall investment strategy having risk and return objectives reasonably suited to the trust.

Question 244

Prudent Investor Rule

Answer 244

A trustee must invest and manage trust property as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust, all the while exercising reasonable care, skill, and caution.

Question 245

Co-trustees must use reasonable care to prevent other co-trustees from

Answer 245

committing a breach of trust, and must compel one another to redress any breaches.

Question 246

A co-trustee may be liable for the breach of the duty of care or loyalty by another trustee if he:

Answer 246

participates;
improperly delegated his obligations to a co-trustee; concealed, approved, or somehow acquiesced in the malfeasance;
failed to exercise reasonable care;
realized there had been a breach, but did not take steps to remedy it.

Question 247

A trust instrument may not relieve a trustee for

Answer 247

(1) breach of the duty of loyalty

(2) acts committed in bad faith

Question 248

May a beneficiary prospectively and generally limit the liability for a breach of the duty of loyalty or for bad faith actions?

Answer 248

No

Question 249

Beneficiary’s Remedies

Answer 249

a. Compel the trustee to act more prudently.
b. Enjoin the trustee from committing further breaches of trust.
c. Compel the trustee to appropriately fix the situation that he’s caused.
d. Petition the court to remove the trustee.

Question 250

Where the trust was to be in operation for a specified number of years,
or until the occurrence of a prescribed event, and that period of time has elapsed or the incident has occurred, the trust ordinarily terminates

Answer 250

in accordance with the instrument’s terms.

Question 251

Trusts in Louisiana are indestructible, meaning that

Answer 251

Once they are set up, the consent of all the settlors, trustees, and beneficiaries still cannot effectively terminate a trust unless the trust instrument so provides.

Question 252

A trust may be revoked, in whole or in part, by the settlor only if

Answer 252

he has reserved a right to revoke or an unrestricted right to modify its terms.

Question 253

Once a valid trust has been created, the settlor may modify the trust only

Answer 253

to the extent allowed by the terms of the trust.

Question 254

If the trust instrument itself allows a party, not a beneficiary, to add or remove beneficiaries of the trust, that is allowable as long as

Answer 254

all of the affected beneficiaries are descendants of the person giving the power to modify.