Testate/Intestate Succession Flashcards
Succession
Types
TESTATE: Results from will of deceased, as contained in valid testament
INTESTATE: Occurs by operation of law in absence of valid testament
Successors
Testate; Intestate
Testate successor = Legatees
Intestate successors = Heirs
Testate succession
Legatees
Types
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
Intestate succession
Heirs
Types
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
Intestate succession
Intestate heirs
Order of preference; Proportions
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
Testate/Intestate
Loss of succession rights
causes
(1) Incapacity; (2) Unworthy; or (3) Disinherison
Loss of succession rights
Incapacity to inherit
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
Loss of succession rights
Unworthy to inherit
Requirement
Conviction or judicial determination that successor participated in the intentional, unjustified killing, or attempted killing, of decedent
Loss of succession rights
Action to declare successor unworthy
Procedure; Prescription; Requirements; Effect
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
Loss of succession rights
Unworthy to inherit
Defenses
Reconciliation;
Justification; or
Lack of Intent
Loss of succession rights
Disinherison
Requirements
(1) Just cause; and (2) Proper form
Loss of succession rights
Disinherison
Grounds for just cause
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
Loss of succession rights
Disinherison
Proper form
Testamentary form: olographic or notarial
Express: “I disinherit”
Specific: FH identified or identifiable from instrument
Just cause: Ground for just cause must be expressed
Loss of succession rights
Disinherison
Defenses
No just cause
Reconciliation
Unintentional
Justified
Incapacity to understand
Acceptance/Renunciation of succession rights
Requirements; Effects
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
Succession
Action for Recognition of Right of Inheritance
Right to demand partition; against third persons
Prescriptions
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
Succession rights
Acceptance
Form; Effect
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
Succession rights
Successor as Creditor
May assert claim as creditor whether accept/renounce succession rights
Succession rights
Creditor of Successor
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
Succession rights
Renunciation
Requirement; Types; Effect
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
Testate succession
Lapse
Definition
Terminatin of right, interest, duty, or obligation as a result of passage of time, failure of condition, or change of circumstances
Testate succession
Grounds for lapse
Legatee …
* Predeceases the testator
* Incapable of receiving
* Declared unworthy
* Cannot fulfill suspensive condition
Legacy …
* Renounced
* Declared invalid (absolutely null)
* Declared null (relatively null)
Testate successioon
Lapse
Effect
Accretion takes place
Lapse of legatee/legacy
Accretion
Form; Order
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
