La Barbri Successions Donations And Trusts

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Successions - Gen. Def’s- Estate

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(transmission of the estate of a deceased to his successors)

prop, rts/obs, and charges (debts/expense) of deceased.

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Successions - Gen. Def’s- Succr

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- person taking place of another.
Univ. Succr¬- reps deceased gets all rts/charges.
Partic Succr- gets only part things.

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Successions - Succr can inherit by:

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1. His own rt; 2. Rep; 3. Transmission.
Succ’nrep: testate= executor; intest= admin.

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Capacity to Inherit or Receive Donation

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must be in existence at time of death or when donation made
• If no fact to show who died 1st in disaster, rebut presup that ea survived the other- estate is distrib as such

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Inherit/Receive Donation Mortis Causa

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Must be in utero when decedent dies & must be born alive
• BUT, child conceived a/f father’s death may inherit provided (1) mother is surviving spouse (2) father specifically authorized in writing she could use his gametes (3) child is born w/in 3yrs of his death
• Other children whose rights are affected have 1yr from birth to disavow paternity

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Receive Inter Vivos Donation

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must be in utero when donation is made & must be born alive

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Capacity to Donate

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Must have capacity when making donation or testament

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“Capacity” - Definition

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must be able to comprehend generally the nature & consequences of his disposition (to challenge BOP= C&C
• Under 16→ no capacity, except to spouse or children
• B/w 16 & 18→ may execute will, but can’t give inter vivos donations, except to spouse & children

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Vices of Capacity

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Fraud, Duress, & Undue Influence (all render donation null)
• Undue Influence→ Donation is product of influence of another person that so impaired the donor’s volition as to substitute the volition of the other person for the volition of the donor
• Note→ any provisions of the act that aren’t the product of the vice are still effective.
• BoP to challenge 4 fraud/duress/undue influence→ clear & convincing E UNLESS a relationship of confidence existed b/w donor & donee at time donation was made. Then, it’s preponderance of the E

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Capacity to Donate - Conflicts

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at time of making, must possess capacity under law of state of domicile at making/death
• If capacity under both→ his will is free of vices if it would be under laws of at least 1 state
• If capacity under only 1→ his will is free of vices if it would be under law of state where he’s considered to have capacity

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SP by Intestacy

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• desc/reps; parents & siblings/reps; SS; more rem asc; more rem. Collaterals; state
• Includes adopted kids & illegitimate kids formally acknowledged or who timely establish filiation
• Half-blood siblings→ divide by maternal & paternal lines (by root)
• No Descendants- parents get Jnt/Successive Usufruct and Sibs get NO.
• Ascendant Right of Reversion→ get back donated IMM if dies w/o posterity & hasn’t disposed of it
• If disposed, but price not yet paid, gets price. Also, may exercise any condition donee placed on sale
• Take back subject to all mortgages donee imposed
• Must contribute to succession debts in proportion to value of donated IMM

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CP by Intestacy

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→ Decedent’s ½ of CP (surviving spouse gets full ownership of her ½ of CP):
• If has Descendents→ descendents/reps get NO & surviving spouse get usufruct (890)
• No security unless NO isn’t child of surviving spouse. Terminates on death/remarriage
• By will(DMC) USU can be given it SS over SP and CP (1499)
• If no Descendents→ surviving spouse gets full ownership
• Putative Marriage (supra, 1)
• ADOPTION- treat as if they were born to parents. Can still inherit from biological parents. Adult Adoption(18+)treat as if they were born of adoptive parents NOT sure if they can inherit from bioP’s. BioP’s cannot inherit from their children once adopted.

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Representation in Intestacy

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→ ad infinitum in descending line; collat- desc of siblings ONLY
• Rep-heir is only considered FH if rep-heir is a g-child who’s parents predeceased the decedent & either (1) g-child is perm disabled or (2) parent wouldn’t have reached age of 24 at time decedent died

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Short Term Survivorship

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TESTATE Succn- testator can include a S’ship clause stating that legatee survive for period of time not exceeding 6 mos- and provide an alternate legatee should 1st leg not survive

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Unworthiness

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→ declared unworthy if (1) convicted of crime involving I’al/attempted killing OR (2) judicially determined to have participated in I’al, unjustified killing or I’al, unjustified, attempted killing
• Bring action to declare unworthy in succession proceeding by person who would succeed in place of or in concurrence w/alleged unworthy successor. Venue: where Succn is opened
• Rx→ intestate: 5yrs from date of death; testate: 5yrs from probate of will
• Pardon doesn’t affect unworthiness. Only defense is to prove reconciliation/forgiveness by decedent
• If found unworthy, successor is deprive of right to inherit as if he predeceased the decedent & cannot serve in a fiduciary capacity.
• If minor takes in place of unworthy parent(s) they have no parental USU over the property

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Acceptance

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presumed to accept. Acceptance may be either formal (xpress/writing) informal(act of owner)

Can Accept in part/Renounce in part

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Renunciation

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must be express & in writing (doesn’t have to be by authentic act, but can’t be oral)

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Accretion

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who receives the renounced share?
• Intestate→ flows as if renouncing heir predeceased the decedent
• Testate→ look first to testament. If silent, flows as if renouncing heir predeceased the decedent
• C’s may prohibit renunciation, to extent of debt must show fraud/intent to injure. Must have ct approval to accept on behalf of debtor-heir

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Capacity to Renounce

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For a minor, tutor may renounce w/ct authorization

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Acceptance/ Renunciation - Generally

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Valid accept/reunun cannot occur before Dec death. To be valid must know of death; know you have some rt as a succr. If legacy has Susp Cond- can be A/R b4 the fulfillment of cond. Nullity of A/R if a testament is subseq probated OR if test is annulled or rts altered amended etc. NO RX- must only show Good Cause to have ct compel a succr to A/R.

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Estate Debts

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(debts of decedent and admin expenses)
• Debts of decedent- those incurred by the Decedent or arising out of death; admin expenses- expenses incurred in collection preservation management and distribution of decedents estate.
• Univ Suc- liable for estate debts to extent of value of prop they received. Gen/Univ legacies- liable to extent of the value of the prop at date of death. If not sufficient: F/P of property that is Gen/Univ legacies and of prop devolving thru intestacy→ F/P of particular legacies and then to the actual prop itself.
• Admin expenses- charged ratably to F/P of prop that is the object of Gen/Univ legacies and prop devolving thru intestacy. Then to prop itself then to F/P of prop of particular legacies and then actual partic legacy itself
• Creditors- order of payment secured, unsecured,
• Testator can specify which C to pay first but testament can’t impair his rights.
• Attys Fees/ Reps fees/other Professional Fees: allocated btwn debts of decedent and Admin expenses

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Prohibited Substitutions

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a disposition not in trust to a 1st donee (institute) who is charged to preserve thing & deliver it at his death to a 2nd donee (substitute) is null w/respect to both the institute & the substitute

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Effect of Prohibited Substitutions

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if gift is prohibited, it lapses, but remainder of the testament is valid (if given to a only to preserve for b till b is 25 is ok)

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Vulgar Substitutions

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a gift in full ownership merely providing that in the event 1st donee can’t take it, a 2nd donee will take it is valid.
• May indicate in will that legatee or trust beneficiary survive testator for stipulated period (only 6 mos)

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Two Forms 4 Donations Mortis Causa

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Olographic & Notarial
• Testament’s valid if fails to met reqs of 1 but happens to comply w/other, even if other form unintended
• Note→ when a disposition is to take effect upon death, it is required to be in compliance with the rules for donations mortis causa
• Note→ designated beneficiary receives proceeds of retirement account (even if ex-spouse; FH’s no claim)

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Olographic Testaments

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written, dated, & signed in own handwriting (including additions & deletions)
• Date→ sufficient if day, month, & year are reasonably ascertainable from info in testament as clarified by extrinsic E. May be anywhere on the doc. Signature- should be @ end but if stuff comes after the end the ct has discretion to include it.
• Testator must have “intent to dispose”→ If written on pre-printed form w/printed or typed wds, will is valid if testamentary intent can be ascertained solely from the material in the testator’s handwriting
➢ Standard Notarial Testament→ Testator must be able to read, write, and sign his name
• Execution→ before a notary and two competent Ws, testator declares the document is his will
• Ws must be present when will is executed. If not present, the mere fact that the testator reaffirmed in their presence later that it was his will doesn’t validate the will
• Writing→ may be written, printed, or typed in a language the testator understands
• Signature→ testator must sign on each page and at the end
• Date→ can be anywhere on the will. Doesn’t have to be dated in presence of notary and witnesses
• Attestation Clause→ at the end of the will, the notary and Ws must declare that all formalities have been met and that the testator intends this to be his will. They must sign the attest clause in the presence of the testator and each other. Testator needn’t /s

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Competency of Witnesses

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Must be 16 or older and not insane, blind, or unable to sign his name
• Legatee and his spouse (married at time of execution) may not be W. Legacy is invalid.
• However, if entitled to inherit in intestacy, legatee gets lesser of intestate share or legacy
• Also, Legatee may not be the notary. Legacy is invalid, and he gets nothing

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Does the naming of an executor, trustee, or atty in handling the estate equal a bequest?

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• Naming of an atty is construed as precatory, and is not binding on the executor
• If executor chooses to use the named atty, he can be excused at any time and w/o just cause
• this rule also applies to naming an atty for a trust and designating other professionals in a will

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Power of Executor

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• Gen. a gift cannot be given to an executor (or 3dP) to bequeath to whom he sees fit. Exceptions:
• may authorize executor to select assets to satisfy bequests made by value or quantum
• may authorize executor to allocate a legacy among different charities. Can select charities

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Use of wd “desire” in a legacy

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it’s interpreted as “precatory” request meaning that it’s nothing more than testator’s wish/hope, & as such it’s addressed to legatee’s conscious but it’s not legally binding

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Three Types of Legacies

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Universal, General, Particular

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Universal Legacy

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all property or the residue/balance left after particular legacies (never follows a gen.)

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General Legacy

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defined in two ways:
• a fraction/certain proportion of (a) all prop or (b) residue/balance
• all/fraction/proportion of (a) SP/CP (b) Movable/IMM (c) Corporeal/Incorporeal

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Particular Legacy

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a bequest that is neither universal nor general (usually for specific property)

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Testamentary Accretion

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for purposes of accretion, when a general legacy is phrased as a residue/balance of an estate w/o specifying that the residue/balance is the remaining fraction or a certain portion of the estate a/f other general legacies, it shall be treated as universal
• Reasoning for this provision→ there can’t be both general & universal legatees b/c according to their definition, the two can’t coexist. If the general legacy is phrased w/words such as “rest,” “residue,” or “remainder,” those words imply an intention to pick up lapsed legacies. If such a rule weren’t in place, lapsed legacies would always devolve by intestacy if no universal successor.

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Accretion of Joint Bequests

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thing is left to 2+ people w/o an assignment of parts/shares, so that legatees take an equal % of the whole (ex: to A, B, and C) (if an assignment of shares, it is a separate legacy)
• When a joint legacy lapses, the share of that legatee accretes to the other joint legatees ratably
• To accomplish a joint bequest, use the magic word “joint” or leave a thing to “A and B”

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Not a joint bequest

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“share and share alike” or “to share equally”

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7 grounds for lapse of donation causa mortis (legacy)

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(1) predeceased (2) lack of capacity (3) suspensive condition that can no longer be fulfilled (4) unworthiness (5) renunciation (6) legacy is declared invalid (ex: legatee is witness, notary, etc…) (7) legacy is declared null.

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Accretion takes place when:

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legacy lapses:
• 1st look to the testament if there is a governing provision. If not, accretes by operation of law
• Law favors devolution to another legatee rather than by intestacy, so generally, it goes to successor who would’ve received the prop under the testament if the legacy had not been made

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Lapse due to Renunciation

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→ In the absence of a governing testamentary disposition, accretion flows as if the legatee predeceased the testator
• Exception→ Most Favored Class Rule: accretes to descendants of legatee (joint or o/w) if legatee whose legacy lapses is a (1) child/sibling of the testator or (2) descendent of a child/sibling
• These relatives are in a kind of “most favored class” b/c their relationship to testator elevates them to a PVed position that cuts across the general rule
• Any portion of the estate not disposed pursuant to these rules devolves by intestacy (no univ/gen)

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Extinction

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when thing is destroyed- legatee gets remainder/insurance etc

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Priorities in Disbursing Bequests

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1st look to the testament for an express provision as to preference of payment. If no provision, particular legacies have preference and are paid ahead of all others
• Bequests of specific things are satisfied first then groups/collections then Cash legacies
• Succr gets F/P of the legacy from the date of the testator. If cash then int starts 1 yr from death unless SS.

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Revocation of Will

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May Revoke Entire Will (@ any time- express or tacit. No rt to renounce revocation)Process→ (1) Revocation clause in new will (even if no such clause will2, if will2 makes contrary dispositions, same in will1 =revoked) (2) Complete & total destruction of it (by testator or 1 under his direction) (if multiple orig- destructing 1= presump) (3) signed writing (entirely written/signed by testator & expresses clear I to revoked; don’t need date) (4) AA- can use AA to revoke but NOT to add or modify. Result→ intestacy or revival of an earlier testament that was not revoked. Olig- must be done by testator. Not- revoke=sign; add/modify= /s & dated

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May Revoke a Legacy by

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(1) declaring in a testaments (olographic/notarial) (2) subseq incompatible testamentary disposition (3) subseq IV disposition of the thing & not reacquiring it (4) making a signed writing on the testament itself (doesn’t have to be dated) (5) divorce a/f execution of testament w/o remarriage, unless the testator provides to the contrary (6) subsq inconsistent MC disp (7) sale/donation of prop

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Intent of Testator

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I of Testator Controls Interpretation→ If I is clear, interpretation is not necessary. If unclear, dispositions are to be interpreted to refer to prop owned by testator at death. Attempt should be to give disposition FX
• If unclear attempt to discern. Contradict test- last prevails Unless gen legacy followed by part. legacy

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Forced Heirship - Forced Portion

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the portion of the estate reserved for all FHs collectively (1 FH→ ¼) (2+ FHs→ ½)

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Forced Heirship - Legitime

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forced portion of a FH; Disposable Portion→ remainder left a/f forced portion is disposed of

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FH Qualifications

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(1) kids under 24 (2) mentally/physically disabled kids (inherited incurable disease so severe that he’s permanently incapable of taking care of his person or administering his estate) must exist @ death and need med documentation & (3) G-kids by rep if (a) predeceased parent would’ve been under 24 at testator’s death or (b) Parent predeceased testator & g-kid is disabled

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FH Greenlaw Problem

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Greenlaw Problem→ legitime cannot be larger than that which would devolve to one child under intestacy
➢ If FH renounces, his legitime becomes disposable & the forced portion is reduced accordingly. BUT, the legitime of each remaining FH is not affected b/c each FH’s legitime is fixed as of the moment of death

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Permissible Impingements on the Legitime:

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Usufruct→ surviving spouse(890)(death/remarriage) OR testamentary(1499)(4 life, unless o/w stated)
• Forced Portion in Trust→ Income attributable to the legitime must be distributed for health, education, support, & maintenance of FH, considering all other sources of income & support
• Survivorship Condition (vulgar substitution)→ although it’s ok to place legitime in trust, even 4 the life of FH, it’s not permissible to provide that, upon termination of the trust, the trustee must deliver the portion of the trust allocable to the beneficiary to X. The only way a provision may be made for a “shifting principal interest” re: the legitime is to provide that if FH dies intestate & w/o kids during the term of the trust, his principal interest may be derived to a substitute beneficiary

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Forced Heirship - Disinhersion

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1. Not/Olig 2. Just Cause 3. Named 4. Explanation.
JC= (1) striking parent (2) cruelty (3) not communicating w/parent a/f reaching age of majority, w/o just cause, for 2+yrs (4) etc…
• Presumption of truth= Rebuted thru Preponderance of evidence, reconcilliation

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FH - Action to Reduce

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any donation made w/in 3yrs of death that exceeds forced portion may be reduced to extent necessary to eliminate impingement. Only FHs can demand. Gift is valued as of date of donation

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FH - Action to Reduce - Calculation

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Active Mass = Value of all estate property + Value of donations in the last 3yrs -Debts

Foreign IMM is included if (1)Decedent is domiciled in La & (2) At least 1 FH is domiciled in La
• La IMM is included if (1) Decedent domiciled outside La at death & (2) At least 1 FH is domiciled in La

• Exclude: certain imm (conflict); life ins; pension; remunerative donations (unless don= +2/3 value of services) onerous donations, DIV 3+ yrs ago; DIV to spouse of previous marriage

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FH - Action to Reduce - Order of Redux

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designation of testator; Univ Succr, Part, DIV (most recent 1st) can skip insolvent donees
• How reduced→ return or take less (value assessed when donated) no credit for improvements

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FH - Collation

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supposed or real return of goods to mass of succession that an heir makes of prop that he received in advance of his share of the succession. (can be waived or stip that it’s an extra portion)

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FH - Collation - Who may demand?

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Only FHs of the first degree may demand or GC inheriting thru rep

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FH - Collation - What

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→ Inter vivos gifts made w/in 3 yrs of donor’s death. Valued as of date of donation
• Expenditures Exempted→ (1) Usual & customary manual gifts (2) Expenses of board, support, and education paid for by the donor (3) Marriage gifts that do not exceed the disposable portion
• An “advantage” is subject to collation even though it is technically not a donation.
• An “advantage” is bestowed when a parent (1) has sold a thing to his child at a low price (2) has bought something for the child or (3) has spent money to improve the child’s estate
• Only the actual “advantage bestowed” portion of the gift is subject to collation

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FH - Collation - From whom may it be demanded?

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→ Children and grandchildren called to the succession of the donor
• BUT, g-kid must have been a presumptive heir of the donor when he received the gift from donor
• May avoid collation by renouncing the succession (must be a valid renunciation)
• However, prop will still be subject to reduction if it impinges the legitime

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FH - Collation - Procedure

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In Kind or by Taking Less
• IMMs→ donee may do either (however, if sold prop. must take less)Can get reimbursed for necessary/useful expenses. Expense for pleasure= no reimb- but does have rt to remove. Also is liable for damages/deterioration/diminution in value due to neg/fault
• Movables→ must take less EXCEPT collation of $ may be made by either
• Simulation- K where parties don’t express true intent. Is Absolute/Relative. Heirs can attack AbSim
• RX- redux- DIV 5 from death DMC 5 from probate; collation- 10 yrs from death (unless partic in succn and judgment of poss has been rendered)

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Omnium Bonorum

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donation disposing of all of one’s prop. Donor can nullify during life or heirs can @ death. Imprescrip. Imm must return value when donated and liable for dimin of value b/c encumbrances

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Donations Inter Vivos - Kinds

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(divesting oneself immediately and irrevocably of a thing AND is accepted)

Three Kinds→ Gratuitous, Onerous, & Remunerative
• if value of services or charges imposed by donation do not exceed 2/3 then rules of grat DIV apply

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Donations Inter Vivos - Req’s

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1. Donative intent; 2. Irrevocability (see infra) 3. Must own prop at present 4. Can have conditions

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Donations Inter Vivos - Conds for IMMs

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must be by authentic act, otherwise null and void
• And, act of donation as well as acceptance (whether in same or separate act) must be filed for registry in the conveyance records to affect 3dPs

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Donations Inter Vivos - Corporeal Movables

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→ manual gift or authentic act
• “manual gift”→ intent to donate + corporeal/physical delivery
• If donor purports to make donation, but retains possession of prop, he doesn’t make completed donation
• A vehicle/boat may be donated by manual gift, but delivery is effective when title is transferred

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Donations Inter Vivos - Acceptance

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must be accepted or its not complete. Donation is effective from date of acceptance
• Must accept during the lifetime of the donor. Donee’s heirs and Cs may not accept
• Methods→ In act of donation or subsequent authentic act
• But, if accept by subsequent act, acceptance has no effect until donor is notified of it

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Donations Inter Vivos - Revocation - Ingratitude of the Donee

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Grounds: (1) Killing the donor (2) Cruel treatment or guilty of crimes resulting in grievous injury to the donor & (3) Refusing food to the donor if he is in need
• Rx→ 1 yr from ingratitude or knowledge of ingratitude
• A donor is generally the only party that can bring action but if he dies after the suit was already brought then heirs can continue it. If donor dies b4 Rx period runs then action can be brought by succrs w/in time remaining in the 1 yr period. CAN be brought against donees heirs

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Donations Inter Vivos - Revocation - Dissolution due to Nonfulfillment of a Condition(s)

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• Dissolution due to Nonfulfillment of a Condition(s), which may be either (1) suspensive (in contemplation of marriage) or (2) resolutory (gift of land to be used as a park- need consent of parties or jud decree to dissolve donation)
• Effect of Revocation→ IMM is returned EVEN IF donee has alienated by onerous title (subject to the laws of registry). Mov-if onerous alien etc in GF Rx→ 5 yrs

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DIV in marriage context

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- need an instrument in authentic form stating that the gift is in contemp of marriage
• Doing so makes the thing subj to susp condition that they get married

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Trusts

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(the relationship resulting from the transfer of title to prop to a person to be admin by him as a fiduciary for the benefit of another)

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Settlor

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person who creates the trust

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Trustee (Tee)

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person to whom title is transferred and who manages the assets
• If an individual, must be an American citizen. Charities may be Tees of charitable trusts
• If a financial institution or trust company, it must be authorized to exercise trust or fiduciary powers under La law or US law. Thus, can’t be a bank from another state unless it’s a national bank
• The settlor may be the Tee and even the beneficiary too
• If trust doesn’t designate a Tee/succr Tee, or if he won’t accept, ct may appoint one. Doesn’t invalidate the trust. Trustee accepts the donations in trust for the benef, even for minor benef.

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Powers of Trustee

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• Has power to buy sell lease and mtg (even beyond term of trust) Also borrow funds/ obligate trust
• Is fiduc, must act as reasonable prudent person.

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Beneficiary

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→ person for whose benefit the trust is established (can be income/principal or both)
• Must be “in being” & ascertainable when it’s created. Unborn child’s “in being” if born alive
• Income Beneficiary→ entitled to income generated by trust property in accordance w/the trust provisions
• Principal Beneficiary→ entitled to principal/corpus of trust prop in accordance w/provisions of the trust
• Can’t have successive P’pal interests, except as a conditional substitution would allow control from the grave. Class Trusts can include future members not yet in being when trust is created

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Inter Vivos Trusts

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est while settler is living either by authentic act or act b/4 two Ws duly acknowledged by either settlor or one W. Effective upon execution of the trust

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Testamentary Trusts

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→ must be in the form of a will (part of the testament)
• Effective upon date of death. Tee’s acceptance relates back to creation of trust.
➢ Presumption that trusts are irrevocable but can be designated as revocable. The pwr to revoke can be given to another thru an Express stmnt in trust interest OR pwr of atty in AA which refers to trust
➢ Just Need I to establish a trust→ No special language is required.
➢ Form- IV: AA or PS; Testament: form of will. Need not be recorded unless it owns Imm prop. If so then trust instrument or extract w/ (name of trust; stmnt of revocability/irrevocability; name of settlor and /s of setllor if DIV; name of TEE and name or other descript of the beneficiary; date of trust execution; descript of prop. Title must be recorded to effect 3Ps.) must be recorded in parish where prop is located

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Legitime in trust

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• Income only has to be distributed as necessary for health, education, support, and maintenance of FH
• As a beneficiary, FH may have right to require the Tee, as a fiduciary, to make assets productive
• May be subject to an income interest or usufruct of surviving spouse of settlor
• Duration→ may be for the life of the FH, but cannot exceed the FH’s life, except:
• where it is subject to income interest of the surviving spouse OR
• as may be provided for conditional substitutions
• If trust doesn’t comply w/FH requirements, doesn’t fail. It’s changed to conform

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Spendthrift provision in a trust

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→ beneficiary can’t alienate or encumber his interest in trust, & trust income & principal are exempt from seizure by Cs of beneficiary. All that is needed is to use the word “spendthrift”
• Ct may permit seizure to pay alimony or child support
• A legitime in trust may be subject to a spendthrift provision

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Conditional Substitutions (shifting principal)-

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vesting int of princ benef in named substitute benef IF benef dies w/o descendants during the term of the trust. If FH benef must be intestate and have no descendants

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Trusts for CP

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➢ CP may be put in trust w/ instruction to divided it into 2 separate shares at spouses death.

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Termination of Trust

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- if principal dies b4 term his interest vests in heirs/legatees. Trustee may have rt to term early. TEE cannot do so unless the authority is granted unless court term’s b/c continuing would defeat/subst impair. If not its indestructible.
• Term- 20 yrs from death of settler or last death of income benf; if sett not nat person then 20 yrs from creation of trust or last death of income benf; 20 yrs from death of setllor if income benf is NOT nat person; 50 yrs from creation of trust if neither settler NOR income benf is nat person.

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Class Trust

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- can consist of descendants and collaterals up to but not including Great great grandkids or great great grand nieces/nephews. One member of the class must be in being when created. MUST have closing- when its not possible to have another member- setllor can stip an earlier date for the class to close. Terms when last member of class dies unless earlier date is spec’d

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Charitable trust

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can exist in perpetuity. Can have split interest (pt to charity pt to private). TEE can be the charity