Successions, Donations and Trusts

Question 1

first presumed father

Answer 1

husband of the mother or husband 300 days before birth of child.

Question 2

if presumed father wants to renounce, prescriptive period of

Answer 2

one year from birth of child OR one year from actual or constructive knowledge that child wasnt his
(living seperate and apart exception, one year from notification in writing)

Question 3

if first husband disavows,

Answer 3

second husband presumed to be father.

may disavow for 1 year peremptive from 1st husband’s disavowal

Question 4

three party acknowledgement

Answer 4

requires mother, presumed father, bio dad to sign
authentic act
within peremptive 10 years of birth of child

Question 5

man who marries mother of child not filiated to another man may

Answer 5

acknowledge by authentic act

no prescriptive period

Question 6

man who does not marry mother

Answer 6

may acknowledge child by authentic act IF child not filiated to another man
AND one way effect

Question 7

child may sue to filiate to father

Answer 7

called paternity action

can do at any time during father’s life, preponderance of evidence
OR
peremptive period of one year from death of father, clear and convincing evidence

Question 8

father maysue to establish paternity of kid

Answer 8

must prove by preponderance of the evidence
if child not filiated, then sue at any time
if child filiated, then must file action within one year of birth of child
UNLESS decieved in bad faith by mother, then earlier of one year from knowledge OR 10 years from birth of child

Question 9

renunciation of succession

Answer 9

must be written, express, made after death of decedent and after renouncing party knows he has succession rights

Question 10

payment of estate debts

Answer 10

universal successors are liable for estate debts to the extent of the value of their succession
debts attributable to identifiable property are charged to that property and its fruits and products

Question 11

donation requirements

Answer 11

capacity
no vices
formalities
substance not violation (omnium bonorum or reprobated dispositions)

Question 12

capacity to donate

Answer 12

must be able to comprehend generally the nature and consequences of the disposition that he is making

prove lack of capacity by clear and convincing evidence

Question 13

conflicts of law in capacity questions

Answer 13

apply law of state where domiciled at time of making testament OR at time of death

Question 14

undue influence standard

Answer 14

when the other person influenced the donor as to substitute the volition of the other person for the volition of the donor

Question 15

illegal conditions in a donation are called

Answer 15

reprobated dispositions:

(1) conditions that are impossible, immoral, or contrary to law are considered not written
(2) prohibited substitution = a double disposition in full ownership with a charge to preserve and transmit at death

Question 16

“i leave my boat to whoever bob decides to give it to”

Answer 16

is null.

= “dispositions given to the choice of third persons are null.”

Question 17

requirement for will =

Answer 17

testamentary intent AND will valid in form

Question 18

law executed outside of louisiana

Answer 18

may be executed in louisiana, if valid under the law of the state in which it was made

Question 19

how to identify testator’s handwriting for oleographic will

Answer 19

2 witnesses must testify

Question 20

dispositions after signature in oleographic will

Answer 20

does not invalidate the will’s validity AND may be considered as valid testaments by the court’s discretion

Question 21

special notarial will forms

Answer 21

for literate people who cannot sign – may make his mark
for blind or illiterate people – testament must be dated and read aloud. witnesses must testify that the testament read aloud was the one signed by testator
braille testaments – two witnesses required, no need to read aloud

Question 22

witness or his spouse is legatee

Answer 22

legacy is null unless would inherit in intestacy, then receive the lesser of legacy or intestacy portion

Question 23

notary is legatee

Answer 23

legacy is null. does not extend to notary’s spouse

Question 24

types of legacies

Answer 24

universal - whole of estate, or residue of estate
general - fraction of whole or residue of estate
particular - all else

Question 25

ways to give legacies to multiple people

Answer 25

joint - when testator does not assign shares | seperate - when testator assigns shares (share and share alike or to share equally)

Question 26

extinction of legacies

Answer 26

when the property that is the object of the legacy is lost, destroyed, or extinguished

Question 27

heirarchy of disbursement of legacies

Answer 27

particular legacies first then legatees of specific things then legatees of groups and collections then cash legacies pro rata

Question 28

fruits, products, and interest rights

Answer 28

legatee entitled to fruits and products attributable to the legacy from date of death. however, distribution is subject to administration of estate and costs legatee entitled to interest on money legacies starting a year after death of decedent. unless usufruct to spouse, then start from date of death

Question 29

justifications to exclude a forced heir, called:

Answer 29

disinherison striking the parent, or raising the hand to strike the parent cruelty, crime, or grevious injury attempted murder accusing parent of capital offense without reasonable basis using violence to prevent parent's will being executed conviction of felony, the sentence for which is life imprisonment or death AND minor child marrying without consent AND without just cause, while knowing how, for 2+ years, failing to communicate after age of majority

Question 30

disinherison requirements

Answer 30

must be writte, state reason, facts or circumstance heir may rebut by a preponderance of evidence that grounds are false, that they were not capable of understanding because of age or capacity, the behavior was unintentional, or justified AND heir who proves reconciliation by clear and convincing evidence is entitled to legitime

Question 31

forced portion fraction

Answer 31

1/4 if one forced heir 1/2 if two or more forced heirs note: if share in intestacy is lower than share as forced heir, use intestacy share

Question 32

legitime must be granted in

Answer 32

full ownership unless subject to 890 usufruct (may be requested to provide security if SS is stepparent) may also place legitime in trust, if forced heir is both principal and income beneficiary

Question 33

active mass calculation

Answer 33

= value of estate property - debts (insolvent estates only reduce to zero, not negative) + donations inter vivos over three years before death

Question 34

things excluded from active mass

Answer 34

life insurance pension remunerative and onerous donations

Question 35

order of reduction when action to reduce donations has proceeded

Answer 35

donations mortis causa other legacies then donations inter vivos starting with most recent to death donations may be returned to estate in kind or by contribution to legitime

Question 36

collation rules:

Answer 36

may only be requested by forced heir | only donations inter vivos during the three years before death, made to other siblings, are collatable

Question 37

donations exempt from collation collation

Answer 37

manual gift exception (customary gifts delivered by hand) school and board expenses marriage gifts

Question 38

how collation happens

Answer 38

in kind or by taking less

Question 39

prescriptive periods

Answer 39

action to reduce is 5 years from death of donor collation is earlier of: 10 years from date of death OR when judgment of possession has been rendered action to nullify an donation omnium bonorum is imprescriptable

Question 40

three types of donations inter vivos

Answer 40

``` gratuitous remunerative (in return for service, considered a contract if service was valued 2/3+ of donation value) onerous (service in return is required, considered a contract if service is valued 2/3+ of donation value) ```

Question 41

donation inter vivos requirements

Answer 41

donative intent by authentic act for immovables by manual delivery for corporeal movables by authentic act for incorporeals unless delivered according to rules of negotiable instrument must be accepted by donee

Question 42

may be revoked or dissolved when

Answer 42

may be revoked for ingratitude may be dissolved for nonfulfilment of a suspensive condition, occurrence of a resolutory condition OR nonperformance of other conditions

Question 43

definition of ingratitude

Answer 43

killing or attempted killing of donor cruelty, crimes, or grevious injuries towards donor (includes adultery, accusing donor falsely of crimes) prescribes one year from act of ingratitude, or when donor knew or should have known of it; right to revoke passes to successors

Question 44

prescription of action for dissolution

Answer 44

five years from date when donee fails to perform the charges or ceases to follow his obligations per the DIV

Question 45

trust is ____ by default

Answer 45

irrevocable. can expressly make revocable. can delegate revoking power to a third party or trustee

Question 46

trustee may be

Answer 46

a natural person who is an americian citizen or resident noncitizen a juridical person which is an FDIC insured depository institution chartered by any state or federal law a juridical person which is a financial institution or trust company chartered by louisiana or federal law a chariity

Question 47

definition of an income beneficiary

Answer 47

someone to whom income is payable presently, conditionally, or in the future OR someone for whom income is accumulated OR who is entitled to the beneficial use of principal presently, conditionally, or in the future, for a time before the principal's distribution

Question 48

class trusts may be created to benefit who?

Answer 48

settlor's children, grandchildren, and great-grandchildren AND siblings, nieces/nephews, and great-nieces and nephews AND those relations of the settlor's current, former, or deceased spouse

Question 49

venue for trust cases

Answer 49

parish where settlor domiciled OR parish where trustee domiciled OR OR 19th JDC

Question 50

recordation requirement for trusts?

Answer 50

doesn't need to be recorded unless trust owns immovable property, in which case, unrecorded trust is ineffective against third parties

Question 51

alienability of a trust

Answer 51

may alienate or burden your interest in trust or part thereof unless the trust is a spendthrift trust

Question 52

seizure of spendthrift trust assets permitted for

Answer 52

owed payment for necessities of support and maintenance of beneficiary; alimony or child support owed; damages from felony crime beneficiary was convicted of

Question 53

trust terminates

Answer 53

if not specified then: at death of last income beneficiary or 20 years from death of settlor (if settlor natural person) at death of last income beneficiiary or 20 years from creation (if settlor not natural person) 20 years from death of settlor if settlor natural person but income benefiiciiary juridical person 50 years from creation of the trust if both settlor and beneficiary are juridical persons charitable trusts may be perpetual

Question 54

charitable trust split interest things

Answer 54

can have a purely charitable trust also can create a split interest trust - income beneficiary is a person, then residue to charitiy or

Question 55

pet trusts

Answer 55

allowed pet must be in being and ascertainable at time of creation of trust trust property used to care for animal and pay for reasonable compensation of caregiver and trustee court may terminate trust as to excess beyond needs of reasonable expenses and compensation

Question 56

capacity test for testation

Answer 56

testator must be able to comprehend generally the nature and consequences of the donation

Question 57

undue influence test during challenge of wills

Answer 57

by clear and convincing evidence unless donor and influence or shared relationship of confidence, consanguinity, or adoption --> preponderance of the evidence

Question 58

car traded in that was disposed in will?

Answer 58

the legacy has lapsed, because the trading in is a disposition of the thing

Question 59

if donation rescinded for violation/nonperformance, ways it can be dissolved

Answer 59

if the condition not fulfilled is one the donee has power to perform or prevent --> dissolved by right if the condition is not within power of the donee --> must be dissolved by consent or judicial intervention

Question 60

disinherison must be in ____ form

Answer 60

authentic act or oleographic form -- same as will

Question 61

valid reasons for disinherison:

Answer 61

(1) The child has raised his hand to strike a parent, or has actually struck a parent; but a mere threat is not sufficient. (2) The child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury. (3) The child has attempted to take the life of a parent. (4) The child, without any reasonable basis, has accused a parent of committing a crime for which the law provides that the punishment could be life imprisonment or death. (5) The child has used any act of violence or coercion to hinder a parent from making a testament. (6) The child, being a minor, has married without the consent of the parent. (7) The child has been convicted of a crime for which the law provides that the punishment could be life imprisonment or death. (8) The child, after attaining the age of majority and knowing how to contact the parent, has failed to communicate with the parent without just cause for a period of two years, unless the child was on active duty in any of the military forces of the United States at the time.

Question 62

representation discussion

Answer 62

representation is a fiction of the law that puts representatives in the place, degree, and rights of the person represented. takes place in the direct line of descendants ad infinitem; takes place in the collateral line to represent predeceased siblings

Question 63

definition of forced heir =

Answer 63

a child who has not attained 24 years of age; a child who is permanently incapable of taking care of person or administering their estates ; a grandchild if parent would have been under 24 at grandparent's death OR if grandchlid is permanently incapable

Question 64

legitime in trust

Answer 64

generally allowed if FH is income and principal beneficiary | if FH is principal beneficiary, subject to income beneficiary of surviving spouse, also ok

Question 65

when the legatee or successor killed the testator/decedent

Answer 65

then you can bring an unworthiness action -- must be able to prove some kind of intent to kill those who would succeed in place of the unworthy person may bring the action, during succession proceedings, within 5 years of probate/opening succession

Question 66

creditor of succession emerges after judgement of possession. valid? how paid?

Answer 66

yes valid. gets paid first from assets remaining under administration then successors to whom distribution haas been made then unsecured creditors who received payments from the estate

Question 67

may creditor accept succession on behalf of successor?

Answer 67

yes. must prove that (1) creditor relationship predated succession (2) that renunciation impinged creditor's rights (3) successor's intent to frustrate creditor's collection of succession assets

Question 68

requirements of a witness

Answer 68

not blind not insane able to sign name over 16

Question 69

donation of future property allowed?

Answer 69

no. a donation inter vivos can only be made regarding present property of the donor