Testate/Intestate Succession

Question 1

Succession

Types

Answer 1

TESTATE: Results from will of deceased, as contained in valid testament

INTESTATE: Occurs by operation of law in absence of valid testament

Question 2

Successors

Testate; Intestate

Answer 2

Testate successor = Legatees
Intestate successors = Heirs

Question 3

Testate succession

Legatees

Types

Answer 3

UNIVERSAL LEGATEE:
Inherits all or fraction of estate; Proportionally liable for estate debt

GENERAL LEGATEE:
Inherits category or portion of estate; Proportionally liable for estate debt

PARTICUALR LEGATEE:
Inherits particular item or right; No liability

SPECIFIC LEGATEE:
Inherits specific property that is distinct from estate

JOINT LEGATEE

Question 4

Intestate succession

Heirs

Types

Answer 4

FORCED HEIRS:
* First degree descendants: By age or incapacity
* By representation – Children of predeceased first-degree descendant: By age or incapacity

INTESTATE HEIRS: Relatives, by blood or by adoption, who succeed in proportions by class in order of preference, in absence of forced heir
* No Right to Inherit of:
– Biological parent from adopted child, unless other biological parent married to adoptive parent
– Step-relatives
– Judicially separated ex-spouses

Question 5

Intestate succession

Intestate heirs

Order of preference; Proportions

Answer 5

SEPARATE PROPERTY
Descendants
Siblings + Descendants
Parents
Surviving Spouse
Other Ascendants
Other Collaterals
State

COMMUNITY PROPERTY
Descendants
Surviving Spouse

Proportions:
By heads for all first-degree descendants;
Then by roots if representation

Question 6

Testate/Intestate

Loss of succession rights

causes

Answer 6

(1) Incapacity; (2) Unworthy; or (3) Disinherison

Question 7

Loss of succession rights

Incapacity to inherit

Answer 7

Must be in existence, or in utero, at time of decedent’s death; OR

Born to surviving spouse within 3 years of decedent’s death, when specific authorization is in writing

Question 8

Loss of succession rights

Unworthy to inherit

Requirement

Answer 8

Conviction or judicial determination that successor participated in the intentional, unjustified killing, or attempted killing, of decedent

Question 9

Loss of succession rights

Action to declare successor unworthy

Procedure; Prescription; Requirements; Effect

Answer 9

Procedure: Shall be brought in succession proceeding of decedent by a person who would succeed in place of or in concurrence with unworthy successor

Prescription: Five years from death of decedent or probate of will

Requirements for Unworthiness: (1) Judgment of Liability; and (2) Declaration of Unworthiness

Effect: As if unworthy successor predeceased decedent
* Quasi-representation: Permitted if unworthy successor is descendant; sibling; or descendant of sibling of decedent

Question 10

Loss of succession rights

Unworthy to inherit

Defenses

Answer 10

Reconciliation;
Justification; or
Lack of Intent

Question 11

Loss of succession rights

Disinherison

Requirements

Answer 11

(1) Just cause; and (2) Proper form

Question 12

Loss of succession rights

Disinherison

Grounds for just cause

Answer 12

Attempted or actual striking of parent
Cruel treatment, crime, or grievous injury to parent
Attempted murder of parent
Accusation of felony crime
Violence or coercion to prevent testament
Minor marriage without parental consent
Conviction of felony crime
Failure to communicate for two years

Question 13

Loss of succession rights

Disinherison

Proper form

Answer 13

Testamentary form: olographic or notarial

Express: “I disinherit”

Specific: FH identified or identifiable from instrument

Just cause: Ground for just cause must be expressed

Question 14

Loss of succession rights

Disinherison

Defenses

Answer 14

No just cause
Reconciliation
Unintentional
Justified
Incapacity to understand

Question 15

Acceptance/Renunciation of succession rights

Requirements; Effects

Answer 15

Requirements:
* Knowledge of decedent’s death;
* Knowledge of right as successor of decedent;
* Valid acceptance/renunciation made after death of decedent
– Premature = Absolute nullity

Effects:
* RETROACTIVE: Succeeded to rights at moment of decedent’s death, or never had those rights
* IRREVOCABLE “One bite at the apple” – UNLESS subsequent developments

Question 16

Succession

Action for Recognition of Right of Inheritance
Right to demand partition; against third persons

Prescriptions

Answer 16

Action for Recognition of Right of Inheritance: Prescribes thirty (30) years from judicial opening

Right to Demand Partition: Right, unless uninterrupted possession for thirty (30) years
* Against Third Persons – Two (2) years from rendition of judgment of possession

Question 17

Succession rights

Acceptance

Form; Effect

Answer 17

Form:
SILENCE: Acceptance presumed in the absence of renunciation
FORMAL: Written acceptance, OR Assumes quality of successor in a judicial proceeding
IMPLIED: Act of dominion or ownership implying intent to accept (Maintenance excluded)
MINOR: Deemed to accept, UNLESS legal representative renounces obo minor with court authorization

Burden of proof: Renunciation unquestionably beneficial for minor (high burden)
* Effect: UNIVERSAL LIMITED LIABILITY – Universal successors proportionally liable for estate debts

Question 18

Succession rights

Successor as Creditor

Answer 18

May assert claim as creditor whether accept/renounce succession rights

Question 19

Succession rights

Creditor of Successor

Answer 19

May accept succession rights obo renounced successor by proving:
* Increased insolvency of debtor; OR
* Fraud – Intent to deprive creditor

Effect: Renunciation annulled in favor of creditor to extent of claim against successor

Question 20

Succession rights

Renunciation

Requirement; Types; Effect

Answer 20

Requires: Absolute unequivocal renunciation “I renounce”
* Partial renunciation – permitted
* Conditional renunciation – permitted, unless condition is unlawful
– Contract for succession of living person: Absolute nullity; Restoration, or damages (Exception: Clean Hands Doctrine)
* Donative renunciation – Renunciation directing accretion to person other than who would receive by operation of law = Acceptance and donation
– Form: Likely must be made by authentic act, since DIV donations require authentic act

Effect: As if renounced successor predeceased decedent
* Quasi-representation: Permitted if unworthy successor is descendant; sibling; or descendant of sibling of decedent

Question 21

Testate succession

Lapse

Definition

Answer 21

Terminatin of right, interest, duty, or obligation as a result of passage of time, failure of condition, or change of circumstances

Question 22

Testate succession

Grounds for lapse

Answer 22

Legatee …
* Predeceases the testator
* Incapable of receiving
* Declared unworthy
* Cannot fulfill suspensive condition

Legacy …
* Renounced
* Declared invalid (absolutely null)
* Declared null (relatively null)

Question 23

Testate successioon

Lapse

Effect

Answer 23

Accretion takes place

Question 24

Lapse of legatee/legacy

Accretion

Form; Order

Answer 24

Form: Must separately accept/announce accretion
* Partial acceptance/renunciation: Permitted
* Consistency with succession rights: Acceptance/renunciation of accretion does not need be consistent with acceptance/renunciation of succession rights

Order of Accretion:
VULGAR SUBSTITUTION: Testament provides who receives next
ANTI-LAPSE RULE: Accretion by roots in favor of descendants of lapsed legatee who is child/sibling of testator
Lapse of Joint Legacy: Accretion ratably to other joint legatees
No Joint Legacies: Accretion to universal legatees
Lapse of Universal Legatee with No Other Legatees: Accretion by intestacy