Workbook1 Flashcards
Successions
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universal successor
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the universal successor represents the deceased and succeeds to all of his rights and charges, includes heirs, universal legatees and general legatees
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particular successor
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succeeds only to certain rights relating to a thing sold, ceded or bequeathed to him, includes buyers or donees of a particular thing, recipients of a particular legacy in a will or transferees of particular things
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testate succession
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when the decedent dies with a testament (will) in the valid form
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intestate succession
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when a decedent dies without a will (testament), when the will is invalid either in whole or in part or when the will does not dispose of all of the decedent’s property
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heirs
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those succeeding intestate
6
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legatees
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those succeeding testate, recipients of legacies
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applicable law
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the applicable law of successions is the law in effect at the date of the death of the decedent
8
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conflicts of laws, movables
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succession (testate and intestate) to movables is governed by the laws of the state in which the decedent was domiciled at the time of his death
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conflicts of laws, immovables
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succession (testate and intestate) to immovables situated IN Louisiana is governed by the laws of Louisiana HOWEVA succession to immovables situated OUTSIDE of Louisiana is governed by the laws of the state that would be applied by the courts of the state in which the immovable is located
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three ways for a successor to inherit
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(1) in his own right
11
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capacity to inherit
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to inherit one needs to be in existence at the time of the decedent’s death, this includes children conceived before the time of death and then later born alive, age and mental capacity are irrelevant, special exception for children conceived posthumously with frozen sperm
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conflict of laws on capacity to inherit
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the capacity of an heir or legatee to inherit is determined under the law of the state in which the decedent was domiciled at the time of his death
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classes of heirs
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in order of right to inherit in intestacy, any members of higher class inherit to exclusion of all other heirs
14
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counting degrees
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for intestate successions, count up to the closest common ancestor then for collaterals count back down to the collateral, relative by closest (fewest) degree takes to exclusion of all others, collateral heirs of the same degree share equally and by heads
15
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father’s inheritance rights from child in intestacy
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*a father has the right to inherit as an ascendant when (1) he enjoys a presumption of paternity as husband of the mother (2) enjoys presumption of paternity as husband of mother and formal acknowledgement of the child that is not rebutted
16
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ascendant’s right to inherit immovables aka reversion
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*an ascendant has the right to the exclusion of all others to inherit immovables he donated inter vivos to the descendant who dies without posterity (ie without kids)
17
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half-blooded siblings
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if there are half blooded siblings the property is divded equally between the paternal and maternal lines, those who share both parents with the deceased sibling take in both lines, half-blooded siblings only take from their respective lines
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surviving ascendants of the same degree
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surviving ascendants of the same degree divide the estate by roots with one half going to maternal root and the other going to the paternal root
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representation in ascending line
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no representation in ascending line
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representation
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a fiction of the law the effect of which is to put the person representing in the place, degree and rights of the person represented
21
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representation in direct lines
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representation in direct lines takes place ad infinitum, it is permitted in all cases, whether the children of the deceased concur with the children of the predeceased child or whether, all the children having died before him, the descendants of the children be in equal or unequal degrees of relationship to the deceased
22
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representation in collateral line
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representation along the collateral line is permitted in favor of the children and descendants of the brother and sister of the deceased NOT FOR OTHER COLLATERALS
23
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basis of partition in cases of representation
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in all cases of representation the partition is made by roots, if a root has made multiple branches then those branches also partition by roots and members of the same root/branch take by heads
24
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representation of decedent whose succession was renounced
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an heir who renounces his right to succeed to a decedent may still enjoy the right of representation in relation to that decedent
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inheritance of community property
*surviving spouse gets full ownership of her half of the community property, not by inheritance but as owner
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community property of putative marriage
*if the decedent spouse is in good faith that spouse's share of community property goes to his successors and the legal and putative spouses share the other half pro rata
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890 usufruct and children not of the marriage
*naked owner children not of the marriage may demand that the surviving spouse post security for an 890 usufruct IF the surviving spouse is not the parent of the child
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inheritance rights for adopted children
*adopted children inherit as if they were born of the decedent's marriage, concurrence of the spouse is required for a married person to adopt
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inheritance rights of children born outside of the marriage
children born outside of the marriage inherit the same way as children of the marriage IF (a) the child is formally acknowledged OR (b) the parents subsequently marry and acknowledge OR (c) if the child timely files a paternity action OR (d) if the father timely files an avowal action (no avowal actions for mothers as we know who they are on account of the whole child birth thing)
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formal acknowledgment
a child may be formally acknowledged either by declaration by the father executed before a notary public in the presence of two witnesses OR by the father signing the birth certificate, for the formal acknowledgement to be effective the child must not be filiated to another man
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reciprocal inheritance rights between child and father
*for purposes of inheritance rights, the presumption of paternity when the father is married to the mother works in favor of the child AND the father
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paternity action
a child can file a paternity action to prove the paternity of his biological father EVEN IF the child is presumed to be the child of another man
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avowal action
*a biological father may file suit to prove paternity of a child, even if the child is presumed to be the child of another man
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presumption of survivorship for persons who perish in a common disaster
*CURRENT RULE- if there are no facts to show that one person perished before the other then BOTH parties are presumed to have survived each other, the burden of proof to establish survivorship rests on the person claiming through the alleged survivor
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short-term survivorship
in testate successions, the testator may include short term survivorship clauses in his will and may impose as a suspensive condition that the legatee survive him for a stipulated period of time not to exceed 6 months
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Seizin "Le Mort Saisit Le Vif"
*succession occurs at the death of the decedent, a successor acquires ownership or is seized of the decedent's property immediately upon the death of the decedent
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transmission
the heir transmits the succession to his own heirs, the heir can institute all actions the decedent could institute and can prosecute those already commenced, the rights of the successor are transmitted to his own successors at his death regardless of whether he accepted the rights
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possession
*possession of the decedent is transferred to the successors
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unworthiness, generally
*when an heir or legatee is judicially declared unworthy he is deprived of the right to inherit
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who may bring an action for unworthiness
*generally an action for unworthiness may only be brought by a person who would succeed in place of or in concurrence with the unworthy successor, Or by one who claims THROUGH such a person
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grounds for unworthiness
when the potential heir or legatee is convicted of a crime involving the intentional, unjustified killing or attempted killing of the decedent, OR, if not convicted, he is judicially determined to have participated in the intentional, unjustified killing or attempted killing of the decedent, Governor's or statutory pardon does not remove unworthiness
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temporal elements of action to declare unworthiness
*an action to declare unworthiness must be brought in the decedent's succession proceeding
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devolution rights of minor children of unworthy successor
if an unworthy heir's descendant succeeds and the descendant is a minor, neither the unworthy parent nor the other parent has a usufruct over the property that the minor inherits
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additional prohibitive effects of unworthiness
when an heir is declared unworthy he ALSO loses
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obligations of unworthy successor
*if the unworthy successor has possession of any of the decedent's property he must return it along with all fruits and products
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effect of reconciliation on unworthiness
reconciliation or forgiveness will cure the grounds of unworthiness
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conflicts of law rule for unworthiness
the unworthiness of an heir or legatee is determined under the law of the state in which he deceased was domiciled at the time of his death
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successor's options upon death of decedent
(1) accept succession
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accepting inheritance but renouncing another's accretion
a successor may accept his specific inheritance while renouncing the accretion that arises from someone else's renunciation and vice versa
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subsequently probated or annulled testament
*an acceptance or renunciation of rights to succeed by intestacy is null if a testament is subsequently probated
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acceptance/renunciation of legacy subject to suspensive condition
a legacy subject to a suspensive condition may be accepted or renounced before or after the fulfillment of that condition
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prescription of acceptance or renunciation of succession
BECAUSE successors are presumed to accept the old 30 year prescriptive period has been abandoned and instead a court, in its discretion, may force a successor to accept or renounce under the "good cause" rule to prevent a successor from impeding the succession
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rights of creditors of successors
a creditor may prohibit a debtor from renouncing succession rights, at least to the extent of the debt
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oblique action
whenever a debtor causes or increases his insolvency by failing to exercise a right, the creditor may exercise that right unless it is purely personal to the debtor, the La. Supreme Court recently held that to do this a creditor must show fraud on the part of the debtor and intent to injure the creditor
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acceptance
*may be either formal or informal
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informal acceptance
(a) an act without knowledge or intent to accept is not an acceptance
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acceptance posing as renunciation
an act of renunciation is really an acceptance when it is made for a price or if it is gratuitous but made in favor of anyone to whom the inheritance would not otherwise accrete
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successor's liability upon acceptance
a successor is liable for debts of the estate but liability is limited to the value of the property the heir actually receives, valued at the time of receipt
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renunciation; requirement and effect
*renunciation must be express and in writing but need not be by authentic act
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renunciation and representation
a relative who renounced his share of a succession may nevertheless represent the person who's succession he renounced in the succession of another
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capacity to renounce
to renounce the heir must have capacity to alienate, HOWEVA for a minor a tutor may renounce with court authorization
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seizin and renunciation
a successor is considered seized immediately upon the death of the decedent until he formally renounces and that renunciation is then retroactive
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debts of the decedent
debts incurred during the life of the decedent or those incurred as a result of his death
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administration expenses
expenses incurred in collection, preservation, management and distribution of the decedent's estate
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liability of universal successors to creditors
universal successors are liable to creditors for the estate debts, including debts of the decedent and administration expenses, but only to the extent of the value of the property received by them, the liability of successors is joint, not solidary
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successors as creditors
a successor who is a creditor of the estate is paid in the same order or preference as other creditors, he is given no special benefit or detriment merely for being a successor HOWEVA depending on the debt you might be better off renouncing your succession rights and instead just collecting on the debt instead of incurring liability to other creditors
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new creditor, order of how claim is satisfied
*when a creditor emerges after the court-ordered distribution of the estate to successors and/or payment of creditors has been made the order in which that new creditor's claim can be satisfied is
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order of payment of estate debts
*secured creditors- if a creditor of an estate is secured (eg a mortgage on estate immovable property or a chapter 9 security interest in movable property) then the creditor will be paid in accordance with the preference and priority of his security right
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successors' responsibility for succession debts by agreement
the testator may, in his will, make specific provisions for the payment of debts, further, the successors themselves may agree on allocation of payment of estate debts, the rights of creditors my NOT be impaired by a testator's will or by agreement among successors
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charges on identifiable property
estate debts attributed to identifiable property are generally chargeable to that property and its fruits and products
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debts of the decedent- how charged
*debts of the decedent are charged ratably to property that is the object of general and universal legacies and property that passes by intestacy, valued at the time of death, if this property is insufficient the debts remaining are charged in the following order:
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administration expenses; how charged
administrative expenses are charged ratably to fruits and products of property that is the object of general and universal legacies and property that passes by intestacy, if insufficient the remaining expenses are charged FIRST to the property itself, NEXT to the fruits and products of property of particular legacies and THEN to the particular legacy property itself
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succession representative's compensation and professional services fees
expenditures involving compensation to the succession representative as well as attorney's fees, accounting fees, and other professional fees incurred in conjunction with administration of the decedent's estate are allocated between debts of the decedent and administration expenses in accordance with the standard of fairness and equity
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tax consequences of allocation of receipts and expenditures
the succession representative or all of the successors may, for tax purposes, report receipts and deduct expenditures as authorized by tax law notwithstanding rules in the civil code
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allocation of receipts and expenditures generally
unless otherwise indicated by law or by provision in the testament, receipts and expenditures are allocated to all successors pursuant to fairness and equity
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donation inter vivos; definition
a donation inter vivos is a donation between living persons, it is a contract by which one party, the donor, gratuitously divests himself of ownership of the thing given, at present and irrevocably in favor of a donee, who accepts the thing
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donation mortis causa; definition
a donation mortis causa is an act to take effect at the death of the donor where he divests himself of all or part of his property and is revocable during the donor's lifetime
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requirements for validity of a donation
(1) capacity- both to give and receive
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capacity for donations
everyone is presumed to have capacity to make and receive donations inter vivos and dispositions mortis causa
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capacity of donor to make a donation
*timing- capacity for a donation inter vivos must exist at the time of the donation and for mortis causa it must exist at the time of the execution of the instrument
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vices of consent
fraud, duress and undue influence, donations made under these vices of capacity are null
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undue influence defined
a donation is null for undue influence when it is the product of influence by the donee or another person that so impaired the volition of the donor so as to substitute the volition of the donee or other person for the volition of the donor
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severability of donations' provisions subject to vices of consent
when a donation is a product of fraud, duress or undue influence BUT any provision of the donation is NOT the product of such vice, THEN that provision shall be given effect unless it is null for some other reason
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burden of proof of vice of consent
*a person challenging a donation for a vice of consent must prove the vice by clear and convincing evidence
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vices of consent and fiduciary appointments
one who commits fraud, exercises duress or unduly influences a donor shall also not be permitted to serve as the executor, trustee, attorney or other fiduciary pursuant to a designation as such in a donation or testament
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vices of consent and conflicts of law
*a person will have capacity to make a testament if, at the time of making the testament, he possessed the capacity under the law of the state (a) where he was domiciled at the time of making the testament OR (b) where he was domiciled at the time of his death
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capacity of donee to receive donations
*to receive a donation inter vivos the donee need only exist at the time the donation was made
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capacity to receive donations subject to suspensive condition
if a donation hinges on the fulfillment of a suspensive condition then the donee must have the capacity to receive at the time the condition is fulfilled
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acceptance of donations by minors
a tutor may accept a donation on behalf of a minor
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reprobated dispositions/donations
conditions made in a donation inter vivos or disposition mortis causa that are impossible, immoral, or contrary to law are regrded as never made and are therefore void
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prohibited substitutions
*a disposition not in trust to a donee, called an institute, who is charged to preserve a thing and deliver it at his death to a second donee, called the substitute
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effect of prohibited disposition mortis causa
if a gift is prohibited it lapses but the remainder of the testament is valid
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prohibited substitutions v. usufruct
while a straight prohibited substitution is prohibited a testator CAN leave a lifetime usufruct to one person with naked ownership to another person that would have a simmilar effect
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vulgar substitutions
if a gift is in full ownership, then merely providing that, in the event that the first donee cannot take the gift that it will go to a second donee instead is not the same thing as a prohibited substitution and is permitted, this is called a vulgar substitution
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condition of survivorship
a testator can attach as a suspensive condition to a legacy that the designated legatee must survive him by a period of time not to exceed six months, the testator can do this with a vulgar substitution and name a second legatee to leave the legacy to in the event that the first legatee does not fulfill the survivorship condition
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temporal effects of survivorship condition
the right of the fuirst donee is suspended until the survivor's survivorship beyond the stipulated period is determined, if the first donee survives the stipulated period he is then considered to have succeeded to the decedent retroactive to the moment of the decedent's death, if the first donee does not survive the stipulated period, he is considered as never having received the disposition and the second donee is considered as having succeeded the decedent from the moment of the decedent's death
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testaments by others or with others
a testament may not be executed by a mandatary or agent for the testator, also, more than one person cannot execute a testament in the same instrument
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dispositions given to the choice of third persons
*testamentary dispositions commited to the choice of third persons are generally null
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when is a testament effective?
when it is probated in accordance with the procedures set out in the Louisiana Code of Civil Procedure
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forms of testaments
there are two (1) notarial and (2) olagraphic, comlpiance with one of the two forms will make the will effective but if it fails to comply with either form it is absolutely null
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testamentary intent
in addition to the proper form, testamentary intent is required for a will to be valid
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conflicts of laws on written testament
a testamentary disposition is valid as to form if it is in writing and is made in conformity with one of the following (a) the laws of Louisiana (b) the law of the state where it was made (c) the law of the state in which the testator was domiciled at the time of his death OR (d) with regard to immovable property only, the law that would be applied by the courts of the state in which the immovable is situated
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olographic testament
*entirely hand written, dated and signed in the handwriting of the testator, it is subject to NO OTHER form requirements
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testamentary intent
the intent for a document to act as a testament, necessary for any testament to be valid, usually only an issue for olographic wills because of the heightened form requirements of notarial wills, letters and memos CAN be valid olographic wills ONLY if they have the requisite testamentary intent
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pre-printed will forms for olographic wills
valid and enforceable IF the hand written portion ONLY expresses the requisite testamentary intent
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standard notarial will
self proving provided that the following required formalities are met
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types of notarial wills
(1) standard notarial tetsament
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notarial will for persons who can and know how to read but are physically unable to sign their name
*the same as for the standard notarial will HOWEVA the person can make a mark in lieu of his signature OR if he is unable to even make a mark he can instruct someone else to assist him in affixing a mark or sign for him
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notarial will for sight impaired persons or persons unable to read
*execution- testament in this form must be executed in front of notary and 2 witnesses, testator must declare that he heard the will's readings and must sign or mark every page and at the end, if unable to sign the reason for the inability must be stated
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braille testaments
*same formalities for normal notarial testaments EXCEPT
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testaments for deaf and/or deaf AND blind persons
*special form ONLY available to deaf and/or deaf AND blind persons who are unable to understand sign language, braille or visual english
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incompetent witness
a person cannot be a witness to a testament if he is insane, blind or unable to sign his name or under the age of 16
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deaf person as a witness
a deaf person may be a witness except in the case of a notarial testament for sight-impaired persons or persons who don't know how to read
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literacy of witness
a person who does not know how to read may not be a witness for sight-impaired persons or persons who don't know how to read
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legatee or spouse of legatee as witness
*if a legatee or spouse of a legatee (already married at time of execution) is a witness to the testament then the legacy to that witness or witness' spouse is invalid
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succession representatives and attorneys
*appointment as a succession rep, atty handling estate, or trustee is not a bequest
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notary as executor of will
permissible
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executor/attorney as witness
permissible if he is not otherwise named as a legatee
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universal legatee
*testator gives this legatee(s) the whole of the property or the balance or residue of the property left after particular legacies
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general legacy
*a fraction or certain proportion of an estate, or a fraction or certain portion of the balance of the estate that remains after particular legacies are discharged, OR
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particular legacy
all other bequests that are neither general nor universal legacies are particular legacies, these are usually legacies of specific property
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joint bequests
when a thing is left to two or more people without an assignment of parts or shares, legatees take an equal percentage of the whole
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joint v. separate legacies
a legacy between 2 or more people is...
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accretion with joint legacies
when a legacy to a joint legatee lapses (ie the joint legatee predeceases the testator) the share of that legatee accretes to the other joint legatees ratably
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death of a joint legatee- rights of other joint legatee
if a joint legatee predeceases the testator, the surviving joint legatees take the entire bequest in full ownership, BUT if all joint legatees survive the testator and then one of the joint legatees dies his share does not accrete to the other joint legatees and is instead part of his estate
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effectuating a joint bequest
*to make a bequest a joint bequest simply include the word "joint" or leave it to "A and B"
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testamentary accretion
*takes place when a legacy lapses
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grounds for lapse
(1) legatee predeceases testator
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effect of lapse
when a general or particular legacy lapses it goes to the successor who would have received the property under the testament if the legacy had not been made Ex. if I leave a specific book to Joe and my entire collection of books otherwise to Jane and then Joe is declared unworthy, that particular book would instead go to Jane
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lapse due to renunciation
in the absence of a governing testamentary provision accretion flows as if the legatee predeceased the testator
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most favored class rule aka no lapse rule
*exception to general rules on accretion
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hierarchy in event of lapsed legacy
(1) follow lapse provision in testament
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extinction of legacy
a legacy is extinguished when the property that is the object of the legacy is lost, destroyed or otherwise extinguished before the death of the testator
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legatee's entitlement in event of extinction
if a legacy is extinguished, the legatee is entitled to any part of it that remains and to uncollected insurance proceeds and to the testator's right of action against any person liable for the loss
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extinction; object of legacy transformed
the legacy of a certain object is not extinguished when the object has been transformed into a similar object without an act of the testator (so not when it's sold)
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extinction; condemned or expropriated property
if the legacy has been condemned or expropriated prior to the testator's death the legacy is not extinguished, rather the legatee is entitled to any uncollected award and also to any right of action that the testator may have had concerning the condemnation or expropriation
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priorities in disbursing bequests
(1) testament governs- if a testamentary provisions sets the order of preference then follow it, IF NOT
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when succession is insufficient to discharge all bequests
*If testament doesn't have a provisions setting a hierarchy, THEN
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rights of legatees to fruits and products
*the successor is entitled to fruits and products attributable to the object of the legacy from the date of death of the testator, the right to distribution of these fruits and products however is subject to administration of the succession
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revocation or modification of testament
*testator may revoke or modify his testament at any time
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revocation of entire testament
may be done by authentic act, signed writing, physically destroying the will, or by writing a new will that expressly states that old will is revoked
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probating a copy of the will
*when original will cannot be found it is presumed to be destroyed and revoked
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destruction; multiple originals of a testament
destruction of one of the multiple originals of the same testament gives rise to a presumption that the testament is revoked
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result of revocation
either intestacy or revival of a preceding will that was not destroyed/revoked, same result if will is invalid
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express revocation of a legacy
*a legacy or other testamentary disposition may be revoked by making a signed writing on the testament itself, does not need to be dated, NOTE an authentic act sufficient to revoke an entire testament is NOT sufficient to revoke a single legacy within it
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tacit revocation of a legacy
*conduct may serve to revoke a legacy within a testament
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# Successions@Quizlet
form for revocations/modifications of wills
*olographic- changes made to document itself serve as revocations/modifications if done by the testator himself so crossing out a legacy revokes it and writing a new one in adds/modifies a legacy
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dependent relative revocation
NOT THE LAW IN LOUISIANA- La. does not recognize the dependent relative revocation doctrine meaning that if a will is revoked and the earlier will is then found to be invalid it does not revive the later will that had been revoked
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revoking revocation
can be done and renders the initial revocation null
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children born after execution of will
*OLD LAW was that the child's birth or adoption automatically revoked the will unless otherwise stipulated in testament
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testamentary intent
*primary concern in testamentary interpretation
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contradictory testamentary provisions
the one written last prevails
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legacy to a creditor
not to be interpreted as satisfaction of the debt unless specifically stipulated otherwise in the testament
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conflicts of laws in testamentary interpretation
the meaning of words or phrases in a testament are determined by (a) the law of the state indicated in the testament OR (b) by the law clearly contemplated by the testator at the time of writing the testament OR (c) if the other two are unavailable then the law of the state where the testator was domiciled at the time of making the testament
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law when testament written v. law when testator dies
testaments are governed by the law in effect at the time of the testator's death
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forced portion
the portion of an estate reserved for forced heirs, one fourth of the estate if there's one forced heir, half the estate if there's more than one forced heir to be divided up by heads, each forced heir's share of the forced portion is his legitime
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legitime
the share of the forced portion that each forced heir receives
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satisfaction of legitime
legitime may only be satisfied by (a) full ownership (b) naked ownership burdened by a usufruct to the surviving spouse OR (c) placing the legitime in trust
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legitime as usufruct or income interest in trust
a usufruct or an income interest in a trust does not satisfy the forced heir's legitime, regardless of whether its value may exceed the legitime
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burdens on legitime
a legitime MAY NOT be subject to impermissible burdens, conditions or charges EXCEPT (a) usufruct to surviving spouse (b) placing the legitime in trust
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disinherison of forced heir
disinherison of a forced heir must (a) be in the valid form for wills (b) be for just cause (c) be express (d) name the person to be disinherited or otherwise make him identifiable or it is null
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just cause grounds for disinherison
(1) striking a parent- threat insufficient
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disinherison defenses
*grounds for disinherison are presumed true but that may be rebutted by proving otherwise by a preponderance of the evidence, unsupported testimony of heir alone insufficient
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disinherison by grandparent
grandparents may disinherit a grandchild for any of the grounds for disinherison whether offending act is against child's parent or grandparent EXCEPT when the ground for disinherison is the minor child marrying without the parent's consent
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disinherison action
*takes effect at death
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forced heirs
*first degree descendants 23 years of age or younger
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disability for purposes of forced heirship
*doesn't need to be "severe" as previously held
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Greenlaw rule
*stupid rule, if the fraction that would normally be used to calculate the forced heir's legitime is larger than the fraction of the estate he would have received in intestacy then the smaller fraction is instead reserved from the forced portion for the forced heir
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effect of renunciation of legitime
*if a forced heir renounces his legitime then it become disposable and the forced portion is reduced accordingly but the legitimes of the other forced heirs are not affected, they are determined by the number of other forced heirs
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forced heirship and children born outside the marriage
a child born outside of the marriage whose filiation to the decedent is established is still a forced heir if he would qualify otherwise
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890 legal usufruct
*given by operation of law to the surviving spouse of a decedent intestate over his half of the community property which otherwise pass in naked ownership to his descendants
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1499 testamentary usufruct to surviving spouse
*lasts for the life of the surviving spouse unless otherwise provided in testament
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judicial remedy in determining security
a forced heir or descendant not the child of the surviving spouse may REQUEST (not require) security when the surviving spouse has a usufruct over the legitime or community property HOWEVA the usufructuary is not necessarily REQUIRED to provide it and if security is owed then the court may fashion a remedy including the issuance of mortgages, notes or liens
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forced portion in trust
*the forced portion may be placed in trust
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survivorship condition on legitime
a survivorship condition is not valid as applied to the legitime of a forced heir UNLESS both the forced heir AND his descedants fail to live for the stipulated period of time not to exceed six months
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action to reduce donations
*only the forced heir may institute an action to reduce donations
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calculation of active mass
*assets-debts+value of donations made in last 3 years= active mass
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items excluded from active mass caculation
(1) immovables excluded by conflict of law provisions
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order of reduction of donations to satisfy legitime
(1) mortis causa donations- following either testamentary provisions or in their absence starting with universal, general then particular
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donee's options when faced with reduction by forced heir
if the donee still owns the property of the donation that the forced heir seeks to reduce he may elect to return the property or, if applicable take less from the succession to satisfy the legitime
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forced heir's rights in reduction where donee no longer owns the property donated
*if donee has alienated the property then he must return the value the property had at the time the donee received it from the donor
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forced heirship before 1982
*forced portion- 1 kid-1/3, 2 kids-1/2, 3+ kids-2/3
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forced heirship from 1982-7/1/90
*forced portion- 1 kid-1/4, 2+ kids-1/2
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forced heirship 1990- June 18 1996
the same as now except for grandchildren who only were forced heirs if their parents predeceased decedent and would have been younger than 23 (not 24) at the death of the decedent, after 6/18/1997 the law changed to its current state
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collation defined
*collation is the supposed or real return of goods to the mass of a succession that an heir makes of property that the heir received in advance of his share of the succession
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presumption of collation
collation is always presumed unless expressly forbidden or waived
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real v. fictitious collation
*real- actually taking the property donated and putting it back in the mass of the succession
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waiver of collation
*collation may be waived by the donor when he expressly states in unequivocal language that he wants the donee to have the thing donated as a separate advantage
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who may demand collation
forced heirs and forced heirs ONLY
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what may be demanded in collation
*inter vivos gifts made within three years prior to decedent's death valued as of the date of the gift
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expenditures exempt from collation
(1) manual gifts- gifts by ascendants, by their own hands to one of their children for their pleasure
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from whom may collation be demanded?
*children and grandchildren and then ONLY if they are called to the succession of the donor
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collation in kind v. taking less
*in kind- donee returns property donated to succession mass
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collation of immovable
*donee can take less or collate in kind
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donee's liability to estate for damage to immovable subject to collation
*donee is liable to the succession for any damage caused by his own negligence or fault
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collation of immovable property burdened by real rights
if immovable property is burdened by real rights the donee is accountable for the diminution in value caused by the imposition of the real rights
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collation of movables
*can't collate movables in kind
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keeping donation and renouncing succession
if a donee keeps a donation away from collation by renouncing the succession a forced heir may still potentially reduce the donation to satisfy his legitime
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collation and judgment of possession
a forced heir may not demand collation after the issuance of a judgment of possession if he participated in obtaining the judgment
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collation of community property
if community property is donated then only the decedent's 1/2 of the property can be collated
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simulation
a contract is a simulation when the parties agree that it does not express their true intent
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counter letter
where two parties have engaged in a simulation they express their true intent in a separate writing called a counter letter
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kinds of simulation
(1) absolute- the parties intend that the contract produce NO effects
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proof of simulation
generally testimonial (parole) evidence is inadmissible, only in the "interests of justice" is this rule broken
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simulations and 3rd party reliance
simulations cannot be attacked as to third parties who have relied on the public records
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prescriptive period for attacking a simulation
claims to attack a transaction as a simulation are imprescriptible
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prescriptive period for action to reduce donation
*inter vivos gifts- 5 years from death of donor
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prescriptive period for demand of collation
10 years from the date of death of decedent unless the hair has participated in the succession and a judgment of possession has been rendered which will bar the action
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donations omnium bonorum
*an inter vivos donation in which the donor gives away his property in its entirety
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action to nullify donation omnium bonorum
*an action to nullify a donation omnium bonorum may be brought by the donor during his lifetime or by his heirs after his death
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actions to nullify donations omnium bonorum; movable v. immovable property
*movable- the donee must return the property
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marital portion
*if one spouse dies "rich in comparison" (5-1) to other spouse then the surviving spouse is entitled to marital portion
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marital portion in trust
marital portion may be placed in trust
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marital portion as a right
*right to claim marital portion is strictly personal
