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Louisiana Bar > Code 2 > Flashcards

Code 2 Flashcards

1
Q

What are the grounds for disinherison?

A

M: Minor marrying without consent
A: Accusing parent of capital offense w/o reas. basis
C: Covington of a felony with punishment as life death
C: Communication of failure for 2+ years after child reaches majority
Attempted murder
Will
Striking or attempting to strike a parent

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2
Q

What are the requirements for an olographic will?

A

Written, dated and signed in the handwriting of the testator.

Proved by the testimony of 2 witnesses saying that the handwriting is that of the testators

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3
Q

What are the requirements of a notarial will?

A

Signed/Marked at the end of each page
Presence of notary +2 witnesses
In writing
Dated
Declared by testator to be will
Attestation clause signed by notary + 2 witnesses
Signed at the end of will

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4
Q

How can you revoke an entire will?

A

Physically destroy or oder it destroyed
Declares in testament form or authentic act
Identifies and clearly revokes testament by writing and signed by testator in their own handwriting (like notarial without a date)

*all require revocatory intent

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5
Q

How can you revoke a revocation of a will?

A

When a second will revokes first will, and second will is revoked, first will becomes valid.

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6
Q

What is the revocation presumption?

A

If you cannot find the will, there is a rebuttable presumption that it was revoked.

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7
Q

How can you revoke a specific provision in a will?

A
  1. Form prescribed by testament
  2. Subsequent incompatible testamentary provision
  3. Subsequent inter vivos disposition of object of legacy
  4. Clearly revokes provision by signed document
  5. Divorced legatee after testament is executed
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8
Q

What are the principals of interpreting a legacy?

A

-If clear, use the text of the legacy, if unclear use testamentary intent
-Interpret dispositions to have effect
-For contradictory provisions, last written prevails
-testaments are read to include all property at death
-give smaller before larger dispositions (interpret narrowly)

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9
Q

What authority may a testator give an executor?

A

-Which assets satisfy a fraction or percentage bequeathed in a legacy
-The authority to allocate a legacy to one or more charities
-Designate charities in their discretion

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10
Q

What are the vices for a will?

A

Fraud
Duress
Undue Influence
Error

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11
Q

What are the requirements of renunciation?

A

Express
In writing

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12
Q

What is the prescriptive period for loss of succession rights due to incapacity or unworthiness?

A

5 years

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13
Q

What are the 3 ways to inherit in a succession?

A

By one’s own right
By transmission
By representation

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14
Q

What are the factors for determining whether there was undue influence?

A

Susceptibility of donor
Opportunity to influence
Disposition to influency
Coveted result

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15
Q

How can you accept a donation inter vivos?

A

Act of donation - authentic act
Subsequent writing on document
Delivery of a corporeal movable
Alienating encumbering property`

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16
Q

What are the 3 parties to a trust?

A

Settlor, Trustee, Beneficiary

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17
Q

How do you form a trust?

A

Intent: must be clear that the creation of a trust was intended

Testamentary: must be in an olographic or notarial form

Intervivos trust: authentic act, act under private signature in the presence of 2 witnesses and duly acknowledged by the settlor or by the affidavit of 1 of the attesting witnesses

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18
Q

What is the default rule about whether a trust is revocable or irrevocable

A

As a general rule, a trust is irrevocable and cannot be modified or revoked

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19
Q

What are the qualifications of a trustee?

A

Natural person: US citizen or resident alein/capacity
FDIC: federally insured under laws of LA or other
Trust company: authorized to exercise trust or fiduciary powers
Nonprofit: for a trust of charitable or mixed purposes

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20
Q

What happens if no trustee is appointed?

A

A vacancy in the trustee role will not cause the invalidity of the trust. The court will appoint a trustee.

The same is true if the trustee does not accept or is removed or resigns

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21
Q

What are the powers of a trustee?

A

May lease trust property
May sell trust property
Mortgage trust property
Credit money on the credit of the trust estate
Compromise, arbitrate or abandon trust claims

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22
Q

Can the settlor be a beneficiary?

A

Yes

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23
Q

How many times must income be distributed to the designated beneficiary?

A

At least every 6 months

A settlor can stipulate when the income allocated to a beneficiary shall be distributed and grant trustee discretion to determine the time and frequency

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24
Q

Can there be successive principal beneficiaries?

A

No, the settlor cannot name substitutes unless they are related to the settlor (sibling, descendent, or descent of sibling/beneficiary) and the principal beneficiary dies before the trust comes into existence

The Trust does allow for concurrent principal beneficiaries.

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25
Q

What happens if the principal beneficiary dies during the trust?

A

The interest vests in the principal beneficiary’s succession.

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26
Q

What are the default rules of a trust if no term is provided?

A

Income beneficiary natural person - terminates on the death of last income beneficiary

No natural beneficiaries, settlor is natural: trust terminates 20 years from death of settlor

No one is natural: 50 years from its creation

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27
Q

What are the trust rules about the maximum time on a trust? (doesn’t apply to class trusts, charitable trusts, employee trusts)

A

One nat. settlor + one nat. income = later of death of last income beneficiary and 20 years after death of settlor

No settlors + 1 nat. income beneficiary = later of the death of the last income beneficiary or 20 years after trust creation

One settlor + no income beneficiary = 20 years from death of settlor

No natural = 50 years from creation

*only original beneficiaries are considered

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28
Q

When can a trustee terminate a trust?

A

With consent + FMV is less than 100k

29
Q

What is a spendthrift trust?

A

It restricts the beneficiaries control over the interest of the trust. Cannot alienate voluntarily or involuntarily

30
Q

Generally, may a beneficiary alienate an interest in a trust?

A

Yes by authentic act or by an act under private signature in the presence of 2 witnesses or act under private signature executed in the presence of 2 witnesses and duly acknowledged by the beneficiary or by the affidavit of 1 of the witnesses.

31
Q

How long can a charitable trust last?

A

A charitable trust has a perpetual duration unless the trust instrument provides otherwise

32
Q

Can you put a legitimate in trust?

A

Yes, but the forced heir must be both the principal and income beneficiary

Exception: It is permissible for a surviving spouse to have a usufruct over the property

Otherwise, cannot be subject to charges or conditioins

33
Q

How often must a legitimate for a forced heir in trust be distributed?

A

Yearly as needed for health, education, support, and maintenance of the forced heir, after considering all other income and support to be received but he forced her during the year.

34
Q

Can a trustee invade a principal for a forced legitime?

A

No. The trustee may not pay principal to an income beneficiary if the payment would deprive another beneficiary of all or a party of the legatime.

35
Q

Can substitutions be named for a legitimate in trust?

A

Yes, but only if the principal beneficiary forced heir dies intestate and without descendants.

36
Q

How long can the legitime in trust last?

A

It may not exceed the life of the forced heir.

It can be extended if it is subject to income or interest or usufruct of the surviving spouse or as may be provided for conditional substitutions

37
Q

If a rule is incompatible with a legitimate in trust, does it make the trust invalid?

A

No. But any provision the trust instrument incompatible with the rules on a legitimate in trust must be reformed to comply.

38
Q

Can you accept only part of a succession?

A

Yes, you can accept in part and renounce in part. Thus, you can accept some succession rights and renounce others.

39
Q

When a testament is not valid in LA but is valid in another state, can it be probated?

A

Yes. Louisiana conflicts law provides that a testamentary disposition is valid as to form if it is in writing and is made in conformity with
1. The law of this state
2. The law of the state of making at the time of making
3. The law of the state in which the testator was domiciled at the time of making or at the time of death
4. with regards to immovable, the law that would be applied by the courts of the state in which the immovables are located

40
Q

Is the recordation of an exemplified copy of the TX probate order in the DeSoto Parish conveyance records sufficient to place the testator in possession of property?

A

No the recordation of exemplified copy of TX probate is not sufficient to place them in possession of any interest.

The executor or any other person interested in the will must file the will with a petition for probate and proper proceedings must be had as would be required on a petition for the original probate of a domestic will.

41
Q

What is the conflicts law about forced heirs?

A

Law of forced heirship of LA will not apply if the deceased was domiciled outside LA at the time of death and left no forced heirs domiciled in LA at the time of their death.

42
Q

What is the rule about which fraction to use for a forced heir?

A

If the fraction that would otherwise be used to calculate the legitimate is garter than the fraction of the decedent’s estate to which the forced heir would succeed by intestacy, then the legitime shall be calculated by using the fraction of an intestate successor.

43
Q

Who can ask for security for a usufruct?

A

Naked owner who is not a child of the usufructuary or if the naked owner is a forced heir

44
Q

What are the rules about acceptation of a succession?

A

A successor is presumed to accept succession rights.

A successor is not obligated to accept the right to succeed; he may renounce.

A person to whom succession rights accrete may accept or announce all or part of the accretion, and the decision does not need to be consistent with their own succession rights.

45
Q

What are the requirements for a creditor accepting a renounced succession.

A

May accept with judicial authorization. Renunciation is annulled in favor of creditor.
Must prove:
-successors renunciation rendered them insolvent or argument pre-existing insolvency
-Renounced fraudulent or with an intent to wrongfully deprive the creditor of their claim

46
Q

Can you disinherit an 18 year old for marrying without permission?

A

No. You can only disinherit a minor who has married without parent’s permission. Not grandparent’s permission

47
Q

. What are the requirements of a “competent” witness to a signing of a testament?

A

They cannot be insane, blind, or under the age of 16

48
Q

What is the rule about ex’s in a legacy?

A

Revocation of a legacy occurs when the testator is divorced from the legatee after the testament is executed and at the time of death unless the testator provided to the contrary

49
Q

What is the form for disinherison?

A

If just cause for disinherison exists, the testator must disinherit the forced heir expressly in a form prescribed for testaments, make the forced heir identifiable, and note the reason, facts, or circumstances that constitute a cause for disinherison.

50
Q

What is the effect if a provision of a trust incorrectly burdens a legitime?

A

It shall be reformed to comply with Louisiana Trust Code rules.

51
Q

What happens when a legatee’s husband is a witness to the will?

A

A person may not be a witness to a testament if that person is a spouse of a legatee at the time of the execution of the testament.

A violation of this rule does not invalidate the testament but, as a general rule, the spouse’s legacy would be invalid and would lapse.

Nevertheless, if the legatee would be an heir in intestacy, she will receive the lesser of her intestate share of the legacy.

52
Q

What is the rule about ex’s in a will?

A

Revocation of a legacy or other testamentary provision occurs, Amon other instances, when the testator is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides otherwise.

53
Q

What is the court’s authority over a trustee?

A

The discretion granted to the trustee is always subject to the court’s review for abuse of discretion.

54
Q

Who is authorized to serve as a trustee?

A

-A natural person with capacity to contract who is a citizen or resident alien of the US
-A federally insured depository institution organized under the laws of LA, another state, or in the US or
-financial institution or trust company authorized to exercise trust or fiduciary powers under the laws of LA or of the US

The is not fatal to trusts, the court will appoint a trustee.

55
Q

What is the standard for declaring a successor unworthy?

A

If they are convicted of a crime involving the intentional killing, or attempted killing of the decedent or is judicially determined to have participated in the intentional, unjusitified killing, or attempted killing of the decedent.

Unworthiness is not automatic and must be declared in the succession proceeding.

56
Q

Who can bring a claim of unworthiness?

A

It may be brought only by a person who would
1. Succeed in place of
2. In concurrence with the potentially unworthy successor or
3. By someone who claims through such a person

A comment suggests that even if concurrent, maybe just if you stand to benefit.

57
Q

What is the prescriptive period for an unworthiness claim?

A

5 years

58
Q

What if the unworthy heir is a minor?

A

The court on its own motion or the motion of a family member may appoint an attorney to represent the minor for purposes of investigating and pursuing an action to declare a successor unworthy

59
Q

How can you defend against a claim of unworthiness?

A

Prove reconciliation or forgiveness

60
Q

What are the rules about creditors seizing from a spendthrift trust?

A

Generally, beneficiaries interest is not subjected to voluntary or involuntary alienation.

However, a court may permit seizure in its discretion if it is
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 a person whom the beneficiary is obligated to support
3. Damages arising from a felony criminal offense committed by the beneficiary which results in a conviction or a guilty plea

61
Q

What must a corporate trust do to buy or sell property from the trust?

A

The trust instrument must provide or it must be specifically authorized by a court of competent jurisdiction after a contradictory hearing.

62
Q

How can a will of another state be probated in LA?

A

By producing evidence required under the law of the place where made or under the law of the testator’s domicile respectively.

63
Q

Can a successor renounce his right to succeed before the decedent’s death?

A

No.

Any attempted renuncipaiotn is premature and absolutely null.

64
Q

What is a trust?

A

A trust is the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.

It is testamentary when created by dmc.

65
Q

What are the substantive requirements of a trust?

A
  1. It must be clear that the creation of trust is intended.
  2. Settlor must designate identifiable beneficiary
  3. Settlor must identify the trust property
66
Q

Can an executory dip into the principal to pay the beneficiaries’ medical expenses?

A

No, not relying on their own discretion. Only if
1. The settlor provided in the trust instrument
2. Judicial authorization

67
Q

Can an executor accept compensation?

A

Yes, an executor may accept reasonable compensation unless the trust instrument provides otherwise or a trustee waives compensation.

68
Q

How does an executor waive compensation?

A

Expressly or tacitly depending on how long they act as trustee without compensation

Louisiana Bar (9 decks)

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