Successions, Donations, and Trusts Flashcards
(71 cards)
Can a successor renounce part of a succession?
Yes. A successor may accept in part and renounce in part.
What are the legal requirements for RENUNCIATION?
1) It must be express; and
2) it must be in writing.
What are types of ACCEPTANCE?
1) Formal: successor expressly accepts in writing or assumes the quality of successor in a judicial proceeding.
2) Informal: successor does some act that clearly implies his intention to accept.
What are the EFFECTS when an INTESTATE successor RENOUNCES?
His rights accrete to those persons who would have succeeded to them if the successor had predeceased the decedent.
How can property be donated?
1) donation mortis causa; or
2) donation inter vivos.
What is a DONATION INTER VIVOS?
A contract by which the donor gratuitously divests himself, at present and irrevocably, of the thing in favor of the donee, who accepts it.
What are the REQUIREMENTS for a DONATION INTER VIVOS?
1) donative intent;
2) irrevocability;
3) present property (cannot donate something you don’t own); and
4) conditions which are lawful and not contrary to good morals.
What is a DONATION MORTIS CAUSA?
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.
What are the FORM requirements for a donation INTER VIVOS of a CORPOREAL MOVABLE?
A gift of a corporeal movable may be made by manual delivery without any further formality, or it may be made by authentic act (in which case delivery is not necessary).
What are the FORM requirements for a donation MORTIS CAUSA?
1) Olographic wills: must be entirely handwritten, signed, and dated by the testator.
2) Notarial wills: testator must be able to read, write, and sign his name at the time the will was executed, must be executed by authentic act (a notary and 2 witnesses), must be signed by the testator on each page, and at the very end of the will, must be dated (date can be anywhere), attestation clause (self-proving element).
What is an ATTESTATION clause?
A declaration by the notary and witnesses of a notarial will, at the end of the will, which states that all formalities have been met.
Self-proving element.
Notary and 2 witnesses must sign the attestation clause in the presence of the testator and each other!
What are the four requirements for a valid donation?
DONATIVE INTENT
1) Capacity;
2) consent;
3) formalities (DMC must be by testament; DIV depends on the object of the donation); and
4) substantive limits are respected (see reprobated dispositions and donations omnium bonorum).
What are the FORM requirements for a donation inter vivos of an immovable?
Donations inter vivos must always be made by authentic act, under penalty of absolute nullity.
When the donation inter vivos affects an immovable (or a real right, e.g., the gift of a usufruct), the act of donation AND the act of acceptance (whether they are in the same or separate act) MUST BE FILED for registry in the conveyance records in the parish in which the immovable is located to affect third parties.
What is the ORDER of succession for COMMUNITY property?
The surviving spouse has full ownership of 1/2 interest as owner.
The decedent’s half is inherited by:
1) descendants, subject to a usufruct in favor of the surviving spouse (to the extent that the decedent did not dispose of it by testament);
2) if no descendants, by the surviving spouse.
What is the ORDER of succession for SEPARATE property?
1) Descendants;
2) Parents and siblings (and sibling’s descendants);
3) Spouse not judicially separated;
4) More remote ascendants;
5) More remote collaterals;
6) State of Louisiana.
What is REPRESENTATION?
Representation is a fiction of the law that allows the descendants of a predeceased sibling or descendant of the decedent to slide into the shoes of the predeceased sibling or descendant of the decedent.
What are the causes of INGRATITUDE?
1) If the donee has attempted to take the life of the donor; or
2) if the donee has been guilty towards the donor of cruel treatment, crimes, or grievous injuries.
What is the right of REVERSION?
Ascendants, to the exclusion of all others, inherit the immovables given by them to their children… who died without posterity (aka, children), when these objects are found in the succession.
Can a creditor stop a successor from renouncing his succession rights?
Yes. A creditor of a successor may, with judicial authorization, accept succession rights in the successor’s name if the successor has renounced them in whole or in part to the prejudice of his creditor’s rights.
When this happens, the renunciation may be annulled in favor of the creditor to the extent of his claim against the successor.
What does a creditor need to prove to annul a successor’s renunciation?
1) The successor’s renunciation rendered him INSOLVENT or augmented his pre-exisitng insolvency; and
2) prove that the successor renounced his inheritance FRAUDULENTLY or with an INTENT TO WRONGFULLY DEPRIVE the creditor of his claim on the debtor’s property.
How is a REVOKED legacy treated?
As though it was never written.
SURVIVORSHIP Clause
RESIDUARY Clause
When is a legacy REVOKED?
1) when the testator makes a subsequent inter vivos disposition of the thing that is the object of the legacy and does not reacquire it;
2) when the testator makes a subsequent incompatible testamentary disposition;
3) when the testator is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary;
4)
