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32 Cards in this Set
- Front
- Back
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How do you determine which state law applies to the capacity or unworthiness of an heir or legatee?
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Determined under the law of the state in which the decedent was domiciled at the time of his death.
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What is the evidentiary standard for proving a testament is invalid (for example because of a forged signature)?
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preponderance of the evidence
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What happens when there is a lapsed legacy?
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The effect of a lapsed legacy is accretion.
1. GENERALLY When a particular or general legacy lapses, it goes to the successor who would have received the property under the testament if the legacy had not been made 2. EXCEPTION - If legatee whose legacy lapses is a child, sibling, descendant of a child or sibling of the testator, accretion takes place in favor of descendants of the legatee joint or otherwise by roots 3. if no universal legatee - property is disposed of through laws of intestacy |
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What are the 7 grounds for a legacy to lapse?
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P I S U R I N
1. predecease the testator 2. incapable at time of death 3. suspensive condition which cant be fulfilled 4. unworthy 5. renounced 6. declared invalid (ex. legacy to notary) 7. declared null ***some argue that revocation does not cause a legacy to lapse but instead is treated as if it were never written. In this case, rules of accretion would not apply. |
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What is the rule regarding dispositions of IRA accounts?
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Under federal and state law, benefits payable by reason of death from an individual retirement account must be paid to the designated beneficiary. If there is a designated beneficiary, the testament has no effect whatsoever on an IRA account of the testator.
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What to remember about unworthiness? (8)
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1. judicially determined to have commited OR convicted of crime involving intentional killing or attempted killing of decedent
2. action brought in succession proceeding of decedent 3. pardon has no effect 4. standing - brought by person who would succeed in place or in concurrence with sucessor to be declared unworthy 5. 5 year pp 6. effect - inheritance rights to devolve as if successor predeceased decedent 7. BOP - preponderance of evidence 8. look for reconciliation |
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What is the effect of and the requirements for renouncing in favor of someone else?
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It is deemed an acceptance to the extent that it causes the renounced rights to devolve in a manner other than that provided by law or testament.
Requires form for inter vivos donation: (1) authentic act (2) acceptance in the act of donation or subseqently in writing |
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What does an heir need to do when a legatee violates a condition of a donation?
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A donor may impose conditions or charges on the donee provided that the conditions or charges are not illegal or immoral.
The donation may be dissolved by an agreement of the parties or judicial decree. The action to dissolve has a PP of 5 years which begins to run on the day the donee fails to perform the charge or ceases to fulfill his obligation. The property shall return to the donee free from alienations, leases, or encumbrances subject to the law of registry. If it cannot be returned free from these things, the heir can still accept it and the donee must be accountable for dimunition in value. |
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A testamentary disposition is valid in form if it is in writing and made in conformity with:
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(1) law of this state
(2) law of the state of making at the time of making (3) law of the state in which the testator was domiciled at the time of making or at the time of death (4) with regard to immovable property, law that would be applied by the courts of state where property is located |
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What do you do when there is a 401k plan and you are asked to calculate the forced portion?
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Do not include it in the calculation of the active mass.
However, the value of such benefits paid to a forced heir are deemed applied and credited in satisfaction of his legitime. |
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If Ann leaves Betty her diamond earrings... and Carol everything in her jewelry box... and the diamond earrings are in the jewelry box... who gets them?
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If a testament contains a legacy of a collection or group of objects and also a legacy or some or all of the same objects, the legacy of some or all of the objects prevails. More specific legacy is enforced.
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When a forced heir demands collation... what are the donee's options?
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(1) They can keep the donated property and take less from the succession only if the value of the donation does not exceed the value of the estate so much that it would be impossible to take less
(2) return the property in kind |
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Who is entitled to Government funds when property in a testament is expropriated?
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if the object of a legacy has been expropriated
before the testator’s death, the legatee is entitled to any uncollected award and to succeed to any right of action concerning the expropriation. [ |
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What are the requirements for a valid renunciation?
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be express and in writing, made after the death of the decedent and only when the successor knows of the death of the person and that he has rights as a successor
*NO date required *NO delivery required |
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What is the time limit for a paternity action when the testator dies?
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1 year PEREMPTIVE period from the date of death
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Who may serve as a trustee?
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(1) A natural person enjoying full capacity to contract who is a citizen or resident alien of the United States, who may be the settlor, the beneficiary, or both.
(2) A federally insured depository institution organized under the laws of Louisiana, another state, or of the United States, or a financial institution or trust company authorized to exercise trust or fiduciary powers under the laws of Louisiana or of the United States. |
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Notwithstanding any stipulation in the trust instrument to the contrary, the proper court, in summary proceedings to which the trustee, the beneficiary, and the beneficiary’s creditor shall be parties, may permit seizure of any portion of the beneficiary’s interest in trust income and principal in its discretion and as may be just under the circumstances if the claim is based upon a judgment for:
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(1) Alimony, or maintenance of a person whom the beneficiary is obligated to support;
(2) Necessary services rendered or necessary supplies furnished to the beneficiary or to a person whom the beneficiary is obligated to support; or (3) Damages arising from a felony criminal offense committed by the beneficiary which results in a conviction or a plea of guilty. |
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An inter vivos trust may be created only by
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authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the affidavit of one of the attesting witnesses
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Rules for dividing property when there isnt enough to go around:
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If the property remaining after payment of the debts and satisfaction of the legitime proves insufficient to discharge all particular legacies, the legacies of specific things must be discharged first and then the legacies of groups and collections of things. Any remaining property must be applied toward the discharge of legacies of money, to be divided among the legatees of money in proportion to the amounts of their legacies. When a legacy of money is expressly declared to be in recompense for services, it shall be paid in preference to all other legacies of money.
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When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:
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In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
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A parent has just cause to disinherit a child if:
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(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. |
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A person who is disinherited may overcome the disinherison by
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proving reconciliation with the testator after the occurrence of the reason, facts, or circumstances expressed in the instrument, provided he does so by clear and convincing evidence.
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Testamentary dispositions committed to the choice of a third person are null, except as expressly provided by law. A testator may delegate to his executor the authority to
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allocate specific assets to satisfy a legacy expressed in terms of a value or a quantum, including a fractional share. The testator may expressly delegate to his executor the authority to allocate a legacy to one or more entities or trustees of trusts organized for educational, charitable, religious, or other philanthropic purposes. The entities or trusts may be designated by the testator or, when authorized to do so, by the executor in his discretion. In addition, the testator may expressly delegate to his executor the authority to impose conditions on those legacies
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A trustee may NOT: (4)
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1. loan trust $ to himself, relatives, or business associates unless trust provides otherwise (UTPO)
2. buy or sell trust property 3. commingle trust property with own property UTPO 4. serve as an officer or partner of any legal entity formed after creation of trust in which trust funds are investsed |
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What are the 4 different terms for trusts?
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1. last to occur of death of last income beneficiary or 20 years from death of settlor if natural person
2. last to occur of death of last income beneficiary or 20 years from creation of trust if settlor is not a natural person 3. 20 years from death of settlor if settlor is natural but income beneficiary is not 4. 50 years from creation if neither settlor nor income beneficiary is natural |
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How may an inter vivos donation be revoked?
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grounds of ingratitude:
(1) where donee has attempted to take the life of donor; or (2) donee is guilty of cruel treatment, crimes, or grievous injuries towards the donor PP= 1 year from date donor K/SHK of ingratitude standing= donor or donor's successors (within time remaining or 1 year from death if ingratitude not known) ex. include slander, false accusation of a crime, adultery |
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Succession of Fakier (waiver of collation)
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Simply leaving the disposable portion to the heir from whom collation is demanded does not evidence the testator's waiver of collation
waiver must be: (1) unequivocal, and (2) in the act of disposition itself, in a subsequent authentic act, or in a will as to gifts made before or after the date of the will |
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What 7 gifts are exempt from collation?
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1. manual gifts
2. gifts for use during the donor's life (ex. funds spent) 3. school/necessitous expenses 4. gifts more than 3 years ago 5. wedding gifts provided they don't exceed the disposable portion 6. gifts received by those who are not required to collate ("presumptive heir") 7. gifts made to a grandchild by a grandparent during the life of a parent |
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How is money by a check donated?
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not a completed gift until check has been cashed
delivery of a certified check is complete upon receipt and valid |
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How is a bank account opened in the name of another person a completed gift?
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authentic act. not completed if the donor retains the right of withdrawal. If A opens an account with his funds, B has burden of proving by strong and convincing evidence that A intended gift to B.
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how are bearer bonds donated?
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U.S. bearer bond needs only manual delivery. other forms need authentic act or in accordance with commercial laws regarding instruments
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how to donate CDs, negotiable or non-negotiable instruments, promisory notes, stock, mutual funds, most bonds, annuities in an investment account, etc.
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by a writing signed by the donor that evidences donative intent and directs the transfer of property to the donee or his account for his benefit (authentic act not required). Completion of the transfer process constitutes acceptance.
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