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Code II > Successions, Donations and Trusts > Flashcards

Successions, Donations and Trusts Flashcards

1
Q

first presumed father

A

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

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2
Q

if presumed father wants to renounce, prescriptive period of

A

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)

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3
Q

if first husband disavows,

A

second husband presumed to be father.

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

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4
Q

three party acknowledgement

A

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

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5
Q

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

A

acknowledge by authentic act

no prescriptive period

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6
Q

man who does not marry mother

A

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

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7
Q

child may sue to filiate to father

A

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

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8
Q

father maysue to establish paternity of kid

A

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

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9
Q

renunciation of succession

A

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

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10
Q

payment of estate debts

A

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

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11
Q

donation requirements

A

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

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12
Q

capacity to donate

A

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

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13
Q

conflicts of law in capacity questions

A

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

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14
Q

undue influence standard

A

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

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15
Q

illegal conditions in a donation are called

A

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

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16
Q

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

A

is null.

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

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17
Q

requirement for will =

A

testamentary intent AND will valid in form

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18
Q

law executed outside of louisiana

A

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

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19
Q

how to identify testator’s handwriting for oleographic will

A

2 witnesses must testify

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20
Q

dispositions after signature in oleographic will

A

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

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21
Q

special notarial will forms

A

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

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22
Q

witness or his spouse is legatee

A

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

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23
Q

notary is legatee

A

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

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24
Q

types of legacies

A

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

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25
Q

ways to give legacies to multiple people

A

joint - when testator does not assign shares

seperate - when testator assigns shares (share and share alike or to share equally)

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26
Q

extinction of legacies

A

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

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27
Q

heirarchy of disbursement of legacies

A

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

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28
Q

fruits, products, and interest rights

A

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

29
Q

justifications to exclude a forced heir, called:

A

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

30
Q

disinherison requirements

A

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

31
Q

forced portion fraction

A

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

32
Q

legitime must be granted in

A

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

33
Q

active mass calculation

A

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

34
Q

things excluded from active mass

A

life insurance
pension
remunerative and onerous donations

35
Q

order of reduction when action to reduce donations has proceeded

A

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

36
Q

collation rules:

A

may only be requested by forced heir

only donations inter vivos during the three years before death, made to other siblings, are collatable

37
Q

donations exempt from collation collation

A

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

38
Q

how collation happens

A

in kind or by taking less

39
Q

prescriptive periods

A

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

40
Q

three types of donations inter vivos

A 
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)
41
Q

donation inter vivos requirements

A

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

42
Q

may be revoked or dissolved when

A

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

43
Q

definition of ingratitude

A

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

44
Q

prescription of action for dissolution

A

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

45
Q

trust is ____ by default

A

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

46
Q

trustee may be

A

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

47
Q

definition of an income beneficiary

A

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

48
Q

class trusts may be created to benefit who?

A

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

49
Q

venue for trust cases

A

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

50
Q

recordation requirement for trusts?

A

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

51
Q

alienability of a trust

A

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

52
Q

seizure of spendthrift trust assets permitted for

A

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

53
Q

trust terminates

A

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

54
Q

charitable trust split interest things

A

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

55
Q

pet trusts

A

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

56
Q

capacity test for testation

A

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

57
Q

undue influence test during challenge of wills

A

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

58
Q

car traded in that was disposed in will?

A

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

59
Q

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

A

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

60
Q

disinherison must be in ____ form

A

authentic act or oleographic form – same as will

61
Q

valid reasons for disinherison:

A

(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.

62
Q

representation discussion

A

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

63
Q

definition of forced heir =

A

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

64
Q

legitime in trust

A

generally allowed if FH is income and principal beneficiary

if FH is principal beneficiary, subject to income beneficiary of surviving spouse, also ok

65
Q

when the legatee or successor killed the testator/decedent

A

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

66
Q

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

A

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

67
Q

may creditor accept succession on behalf of successor?

A

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

68
Q

requirements of a witness

A

not blind
not insane
able to sign name
over 16

69
Q

donation of future property allowed?

A

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

Code II (1 decks)

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