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Children of the decedent who, at the time of the decedent’s death, are:
a. 23 years of age or younger at the death of decedent
b. Someone who because of mental incapacity or physical infirmity is unable to take careof his person
Adopted children have all the priorities as someone who is related by blood
They also retain the right to inherit from biological parents and relatives
If the biological parent marries the adoptive parent the legal relation between the child and the biological parent is not severed
by who you are, what your class is and what your degree is
All heirs who take in their own right take an equal share, also called "by head."
If the decedent is survived by: (1) at least one parent AND (2) at least one sibling or descendant of a predeceased sibling,
THEN surviving sibling(s) or the descendants of predeceased siblings succeed to the separate property of the decedent as naked owners subject to a usufruct in favor of the surviving parent(s).
Then, D's parents succeed to the decedent’s separate property in full ownership
If the decedent leaves no surviving descendants, parents, siblings, descendants of predeceased siblings, or spouse, then these ascendants succeed to his separate property
If no descendants, then spouse takes the CP in full
If a deceased spouse is survived by descendants, then the descendants take naked ownership and spouse gets usufruct
a. in his or her own right
b. by representationc. by transmission
by virtue of representing someone else
It's a fiction of the law that allows someone to stand in the place degree and rights of another
This is if an heir dies after the decedent
You can take the place of an heir who has died after a decedent, but hasn’t exercised his right yet
IF an ascendant gives an immovable to the D, and that immovable is found in the D;s succession, and the decedent dies without posterity:
THEN that immovable goes back to the ancestor that made the donation irrespective of other relations
Note: encumbrances remain
¼ claim against the estate of the deceased spouse
THREE OR FEWER CHILDREN:
¼ interest in usufruct
MORE THAN THREE CHILDREN:“child’s share” in usufruct
Anyone trying to claim succession rights, must prove that person was alive at the time of the decedent’s death
a. he is convicted of a crime involving the intentional killing, or attempted killing, of the decedent; or
b. if you are judicially determined to have participated in the killing or attempted killing of the D
It' as if the unworthy successor had predeceased the decedent; and
NOTE: if the unworthy successor’s child takes in his place, neither parent can claim a legal usufruct upon the property.
Third parties who acquire immovables by onerous title from a successor who is recognized in a judgment of possession are protected after 2 years from unrecognized successors popping up and saying they have rights.
NO- cannot accept before death
A premature acceptance or renunciation is absolutely null.
Note: the successor must have knowledge of his status as a successor to renounce or accept
Formal acceptance occurs where the heir executes a writing or uses a judicial proceeding
Informal acceptance occurs by performing an act that implies that he or she accepted
Yes. However, collation is presumed unless it is expressly waived
Expenses for the heir’s board, support, education, and apprenticeship; (debatable if beyond the norm)
Manual Gifts which are customary presents that parents would ordinarily give to a child (Christmas etc.)
In Kind- The successor gives the property back
By Taking Less- the gift or amount worth is subtracted from the share
If collate in kind, reimbursement by his coheirs for certain expenses, including:
(a) those necessary for preservation
(b)those which have improved the property
(in proportion to its increase in value caused by such improvement)
Note: removable property for pleasure ≠ improvement
NEED an act of donation and an act of acceptance
The donation must be irrevocable and effective at the present time
a. Donor must have capacity
b. Donee must have capacity
c. Requisite formalities are followed; and
d. No substantive limitations are violated.
Inter vivos- need capacity at the time of the donation
Mortis Causa- at the time the testator executes his/her will
A minor under 16 years of age does not have capacity to make a donation inter vivos
EXCEPT in favor of his spouse or children
Can make a donation causa mortis
A misrepresentation or suppression of the truth for the purpose of obtaining an unjust advantage for one party or to cause loss or inconvenience for another
Force used to such a degree as to cause a reasonable fear of unjust or considerable injury to a party’s person, property, or reputation
Influence that so impaired the volition of the donor, so as to substitute the volution of the donee for that of the donor
(1) Susceptibility- likely someone of lower capacity
(3) Disposition(4) Achieving coveted result
(1) a confidential relationship (e.g., attorney-client, physician-patient) existed between the donor and the alleged wrongdoer; and
(2) the alleged wrongdoer was not then related to the donor by affinity, consanguinity, or adoption
If it is possible to sever a provision that is declared null- then the court will do that and enforce the rest.
Otherwise, the entire act of donation or testament will be nullified.
Predeceased parent- at the time of death of the grandparent, parent would have been 23 years of age or younger
Permanent incapability- grandchild has a permanent incapability (no age/capacity requirement for parent)
If the decedent leaves at his death one forced heir:
¼ forced portion, ¾ disposable
If the decedent leaves at his death two or more forced heirs:
½ forced portion, ½ disposable portion
BUT cannot receive more than he would have received if the decedent died intestate.
a. full ownership;
b. naked ownership subject to a usufruct in favor of the decedent’s surviving spouse (effective until the surviving spouse dies or remarries); or
c. property placed in a trust, but only when the forced heir is the principal beneficiary.
FH may recover from the donees of donations inter vivos made within 3 years of the date of the decedent’s death, beginning with the most recent donation and proceeding successively to the most remote
a. raised his hand to strike or struck a parent
b. adjudged guilty of cruel treatment, a crime, or a grievous injury against one of his parents;
c. has attempted to murder one of his parents;
d. convicted of or accused one of his parents of committing a crime carrying a punishment of life imprisonment or death;
e. used an act of violence or coercion to hinder one of his parents from making a testament;
f. has married without the consent of his parents;
h. has failed to communicate with parents for 2 years
(1) rebutting by a preponderance of the evidence;
(2) Reconciliations (w/ C&C evidence)
(3) inability of the disinherited heir to understand the impropriety of his behavior due to age or mental capacity.
If it is impossible, illegal, or immoral, then enforce the donation but you read out the offending clause
Non-alienation clause: Non-alienation for 10 years or more was too long.
Prohibition on marriage
No contest clause
A disposition by which a third person is called to take a gift or legacy in case the donee or legatee does not take it is a permissible substitution.
a. the act must be at least partly gratuitous;
b. the donor must not expect payment in return;
c. the transfer must be made at the present time;
d. the act must be irrevocable; and
e. the donee must convey acceptance during the lifetime of both the donor and the donee.
The donation of an incorporeal movable of the kind that is evidenced by a certificate, document, or other writing may be made by authentic act or by other applicable rule or law.
Note: Investment property, can make a donation by execution of a writing showing donative intent and instructs transfer to your account to someone else’s
Authentic Act: Unless otherwise expressly permitted by law, a donation inter vivos must be made by authentic act, else it will be declared null.
Identification: The donor, donee, and thing donated must be clearly described, either in the act of donation itself or from information contained in it, as clarified by extrinsic evidence if necessary.
a. in the act of donation;
b. subsequently in writing; or
c. by possessing a donated corporeal movable.
(1) the donee has attempted to take the life of the donor; or
(2) the donee has been guilty towards the donor of cruel treatment, crimes, or grievous injuries.
in the presence of a notary and two competent witnesses, the testator must:
(1) declare or signify to them that the instrument is his testament; and
(2) sign his name at the end of the testament and on each other separate page.
Note; Exceptions if physically unable to sign, unable to read, or deaf or blind
A testament has no effect unless it is probated in accordance with the procedures and requirements of the Louisiana Code of Civil Procedure.
Failure to adhere to the requisite formalities for the execution of a testament render the testament absolutely null.
If there is anything written after the signature, the court will determine, in its discretion, whether the writing constitutes part of the testament
they may be given effect only ifthey are in the handwriting of the testator
Court will give effect to a will if it substantially complies with requirements
BUT more strict than other states
One of two dates missing- ok; Missing page, not ok; Missing signature- not ok
The court will purge what the notary or legatee would get
EXCEPT if witness would also get in intestacy, then gets lesser of will share or intestate share
Declare it in a subsequent testament;
Make an incompatible disposition or provision in a later testament
Revoke the legacy or provision by a signed writing on the testament itself
**Make a subsequent inter vivos disposition of the thing that is the object of the legacy (it's gone)
Any legacies in favor of the former spouse are revoked by operation of law, unless the testator provides a clear intent to the contrary
a. the legatee predeceases the testator;
b. the legatee is incapable of receiving @ T's death
c. the legacy is subject to a suspensive condition which can no longer be fulfilled
d. the legatee is declared unworthy;
e. the legacy is renounced;
f. the legacy is declared invalid; or
g. the legacy is declared null (e.g., for fraud, duress, or undue influence).
If lapsing legatee is child or sibling of T, accretion takes place by roots to the legatee’s descendants
-Legacies of groups and collections of things;
- Remaining property is applied toward the discharge of legacies of money, divided among the legatees in proportion to the amounts of their legacies
A trust will not fail for want of a trustee.
Generally, the court will appoint a trustee if no trustee is designated, or if the designated trustee is incompetent, fails to survive the settlor, or otherwise fails to qualify.
Trustee Acceptance- The trustee will need to accept subsequent additions to the trust.
Note: Any party other than the original settlor who contributes property to the trust is himself not considered a settlor of the trust.
a. an individual who is a United States citizen with capacity to contract;
b. a bank, financial institution, or trust company organized under the laws of any U.S. state, or under federal laws; or
c. a nonprofit corporation, if the trust is for mixed or charitable purposes.
a. A trustee can be involuntarily removed for sufficient cause that he is breaching his fiduciary obligations.
b. A corporate trustee may be removed upon petition of the beneficiaries that it is in the best interests of the beneficiaries as a whole, and that another corporate trustee is willing to take over.
a. natural persons;
b. corporate entities;
c. partnerships; or
d. other legal entities having the power to receive property.
Beneficiaries of a trust must be in being and objectively ascertainable from the trust instrument at the time of the creation of the trust
Under a spendthrift trust, the beneficiary is not able to voluntarily or involuntarily alienate his interest, except as to:
(1) creditors of the beneficiary who may have rights based upon alimony or maintenance;
(2) creditors who have supplied necessary services or necessary supplies for a beneficiary;
(3) creditors of damages arising as a result of a felony criminal offense that the beneficiary has been convicted of or pled guilty to.
a. incur reasonable expenses that are necessary to maintain the trust property;
b. sell or lease trust assets;
c. mortgage or pledge trust property;
d. settle or abandon trust claims; and
e. exercise all stock powers.
(1) the income is necessary for the health, education, maintenance, and support of an income beneficiary; or
(2) the party is both principal and income beneficiary.
Duty of Care- Must act as a prudent administrator
Duty of Loyalty- must act with loyalty to beneficiaries
(1) selecting the agent;
(2) establishing the scope and terms of the delegation, consistent with the purposes of the trust instrument;
(3) reviewing periodically the actions of the agent; and
(4) remedying any breaches of the agent’s duties discovered by the trustee.
B must make a request
Then the trustee must provide complete and accurate information as to the nature and amount of the trust property
AND B is allowed to inspect the subject matter of the trust, and documents relating to it.
A trustee’s investment and management decisions with respect to individual assets are evaluated not in isolation, but in the context of the trust portfolio as a whole and as part of an overall investment strategy having risk and return objectives reasonably suited to the trust
A trustee must invest and manage trust property as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust, all the while exercising reasonable care, skill, and caution.
Cannot contract out of liability for:
-breach of duty of loyalty-acts committed in bad faith
a. Compel the trustee to act more prudently.
b. Enjoin the trustee from committing further breaches of trust
c. Compel the trustee to appropriately fix the situation that he’s caused
d. Petition the court to remove the trustee
a. complying with the terms of the trust would defeat or substantially impair the purposes of the trust; or
b. its market value is less than $100,000 and, in relation to the administrative costs, continuing the trust unchanged would defeat or substantially impair its purposes.
a. the purposes of the trust have already been accomplished and it would be pointless to continue;
b. the trust purposes have become illegal or impossible to execute
c. the trust has less than $100,000 in assets and, in relation to the administrative costs, continuing the trust unchanged would defeat or substantially impair its purposes
a. the relief of poverty;
b. the advancement of education or religion;
c. the promotion of health, governmental, or municipal purposes; or
d. other purposes beneficial to society.
The cy pres doctrine allows individuals to petition the court to authorize departure from the express conditions, charges, or terms of the trust because of some change of circumstance that has rendered the trust itself as illegal, immoral, or impossible to administer
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