Successions: Inheritance Rights in general

Prescription to bring a unworthiness action

1) 5 years from date of death if its intestate 2) and 5 years from probate/filing of the testament if its testate.

How may a child be formally acknowledged (2 ways)

1) A declaration by the father in Authentic Act 2) Or by the father signing the birth certificate

What three options does the successor have with regard to the succession

1) Accept 2) renounce 3) accept in part and renounce in part.

Grounds for Declaration of unworthiness (2)

1) Convicted of or 2) Judicially Determined to have participated in the Intentional, unjustified killing or attempted killing of the decedent

Estate debts (two types)

1) Debts of the decedent( those incurred by him and those incurred because he died e.g. funeral cost) and 2) Administration expresses (Those incurred in collection, preservation, management and distribution of the decedent's estate).

When do children born outside of marriage inherit intestate? (4 ways)

1) If the child is formally acknowledged 2) If the parents subsequently marry and acknowledge 3) If the child timely files a paternity action 4) If the father timely files an avowal action

Three ways for a successor to inherit

1) In his own right 2) By representation: Potential heir dies before the decedent, the potential heir's children may represent him and inherit. 3) By transmission: Heir dies after the decedent but before exercising the right to accept or renounce.

Order of creditors

1) Secured Creditors 2)unsecured creditors: pro rata

Who inherits if the deceased did not have any descendants and how?

1) Who? i) parents ii) siblings iii) and siblings descendants, by representation succeed. 2) How? Parents: have a usufruct. Siblings: have naked ownership.

How does a father get inheritance rights from his child?

1) by a presumption of paternity as husband of the mother of a deceased child 2) by a presumption by marriage to the mother and formal acknowledgement that is not rebutted. 3) A man who brings a suit to avow paternity. (If a father has not avowed when child dies he has one year from the death to do so)

What are the effects of being declared unworthy? (3)

1)An heir is deprived of the right to inherit. 2)Loses his right to claim as a forced heir 3)Losses his right to serve in any fiduciary capacity in the succession ofhte decedent.

Community property of a putative marriage. Deceased spouse was in Good Faith.

1/2 goes to deceased's heirs the other 1/2 is split between the two wives.

Community property of a putative marriage. Deceased spouse was in Bad Faith

1/2 goes to each wife

Procedure for the declaration of unworthiness

A court must find some one is unworthy in an action filed in the succession proceeding of the decedent.

What are creditors rights when a debtor-heir renounces his succession.

A creditor of a successor may prohibit his debtor's renunciation of a succession, at least to the extent of the debt; the renunciation remains effective as to the debtor-heir

Conflict of laws: Who is a legatee with respect to immovables

A legatee must qualify as a person (natural or juridical) under Louisiana law if he is to inherit immovables situated in the state →Look for: extreme cases where other domiciles let animals inherit.

Successor

A successor is, generally speaking, a person who takes the place of another.

TIme periods for bring an avowal action. when the child is alive and then when he is dead. If the child is presumed the child of another Man

ALIVE GR: One year from the birth of the child E: Mother is in bad faith and lies to the father then one year from when he knew or should have known of the paternity or ten years. Or 10 years from the birth of the child DEAD One year from the death of the child

When must acceptance or renunciation happen?

After the death of the decedent. 1) Successors must know about the death 2) and he must know he has rights as a successor.

Attempted Renunciation

An attempt to renounce a share in favor of someone outside the designated order of accretion is not a true renunciation. One is considered as having accepted the succession and then having donated the share to the intended designee.

Time periods for bring an avowal action. when the child is alive and then when he is dead. If the child is NOT presumed the child of another Man

Anytime but no later then 1 year from death of the child

Retour Successor

Ascendents inherit to the exclusion of all others when they donate an immovable to a descendant, and the descendant dies without posterity (children) and has not disposed of the immovable. →E: If the immovable donated has been alienated by the descendant on a credit basis and the full price is not yet due, the ascendant has a right to receive the proceeds. →E: The donor-ascendant also has a right of reversion if the donee-descendant places any conditions on the alienation of the immovable.

Classes of Heirs: Descendants

Children or their representatives (decedents) take to the exclusion of other heirs. This includes adopted children and children born outside the marriage who are formally acknowledged or who timely establish filiation.

What is a Short-Term Survivorship clauses

Clauses in testaments which impose as a suspensive condition that the legatee survive him for a stipulated period of time that doesn't exceed six months.

When does the 890 Usufruct end?

Death of the surviving spouse or remarriage

Who can take by representation and when?

Descendants of children or siblings of the decedent when the child or sibling has predeceased the descendant.

What is the effect of representation (what is it)

Descendants of children or siblings of the decedent who would take, but have predeceased the descendant, take by representation. usurping the general rules of intestacy

Renunciation must be...

Expressed and in writing

Types of acceptance (2)

Formal: Expressed and in writing or in a judicial proceeding Informal: Acceptance is an act that implies intent to accept

Obligations of the unworthy successor: If he does not have possession of the property

He must account for the value of the property at the time of the transfer or loss of possession.

What must a father do to make inheritance rights reciprocal

He must avow the child born out of wedlock

Obligations of the unworthy successor: If he has possession of the property

He must return it along with all fruits and products And he must account for any impairment in value caused by his encumbrance of the property or failing to preserve it as a prudent administrator.

From whom can the adopted person inherit?

His biological family and his adoptive family

Who inherits when you have Community property when there is a surviving spouse and descendants

If there are children or other descendants, the decedent's one-half interest in community property goes to them subject to a usufruct granted by law.

what is the presumption of survivorship for persons who perish in a common disaster? And who is the burden of proof on?

If there are no facts to show who died first in a common disaster, each person who perished is effectively presumed to survive the other. The person claiming the alleged survivor

What is the Half- Sibling Analysis?

If there are siblings of different unions the property is divided equally between the paternal and maternal lines. Those who share both parents with the deceased sibling take both lines. Half-blood siblings take only in their respective lines.

Estate

Includes the property, rights and obligations of the deceased person, as well as charges (debts and expenses) that accrue after his death.

Terminology for Successors distinction testate or intestate

Intestate: Heir Testate: legatee

Two types of successions

Intestate: decedent dies without a will, the will is invalid in whole or in part, or the will does not dispose of all the decedent's property. Testate: When the decedent has a valid will

When would a Surviving Spouse not judicially separated come up

Look out for: covenant marriages and couples legal separated (when this existed) 30 years ago but never divorced.

Capacity to inherit

One needs to be in existence at the time of the decedent's death. This includes children who have been conceived and are later born alive. →E: posthumously-conceived child when the husband dies, and the surviving widow conceives by artificial insemination of his frozen sperm.

Who can bring an unworthiness action?

Only a person who would succeed in place of or in concurrence with the unworthy successor, or by one who claims through such a person.

Burden of proof for a alleged father in a avowal action

Preponderance of the evidence

Standard of proof for a child in a paternity action when the alleged parent is still alive

Preponderance of the evidence

Defense to unworthiness

Reconciliation or forgiveness

What are the special rules for forced heir representation

Representation is limited to grandchildren who parent has predeceased the decedent and would not have attained age 24 at the time of the decedent's death or grandchildren who parent has predeceased the decedent and who is permanently "disabled"

Ranking of Heirs distinguish by types of property

Separate Property: 1) Descendants 2) Parents and Siblings 3) Surviving Spouse not judicially separated 4) Remote Ascendents 5) Remote Collaterals Community Property: 1) Descendants and Surviving Spouse 2) Surviving spouse if no descendants

Conflict of laws: Immovables. Which law governs?

Succession to immovables is governed by the laws of the state in which the immovable is located

Conflict of laws: Movables. Which law governs?

Succession to movables is governed by the laws of the state in which the decedent was domiciled at the time of his death. →Look for: checking accounts and vehicles

Who inherits community property when a child renounces his parent's half of the community?

The child's descendants inherit, rather than the deceased parent's spouse.

Applicable law for succession rights

The law that is effective at the date of the decedent's death.

What is the rule for who inherits for More Remote Ascendants

The nearer in degree takes to the exclusion further degrees.

Succession

The transmission of the estate of a deceased person to his successors.

Liabilities of universal successors to creditors

They are liable for estate debts, including debts of the decedent and administration expenses, to the extent of the value of the property received by them. the liability is joint.

What type of usufruct do parents have?

They have a joint and successive usufruct. If one parent dies the entire usufruct accrues to the survivor.

Types of Successors and their definitions distinguished by quantum of succession

Universal Successor: represents the deceased and succeeds to all of his rights and charges. This includes heirs, universal and general legatees. Particular successors: succeeds only to certain rights relating to a thing sold, ceded or bequeathed to him.

When is a surviving spouse required to put up security to the naked owner under the 890 usufruct

When there is a step-child step-parent relationship.

Does a person who renounces the succession still have any rights as to that person?

Yes he may still represent him.

Standard of proof for a paternity action when the alleged parent is dead and the time you have to bring it in

clear and convincing One year from death of the alleged parent its peremptive