Successions and Donations Law
One may gratuitously pass one's belongings to another person or persons by either a will or by donating it while the owner is still alive. Successions and donations law governs this passage of ownership.
Successions refer to how a person passes his assets and debts to his heirs. This may be done in one of two ways: (1) by will - called a testamentary succession, or (2) by no will - called an intestate succession.
Donations refer to how a living person (called a donor) may pass his assets to another living person (called a donee).
A testate succession is one that is governed by a will. By a will, a person dictates how he wants his property distributed amongst his legatees (the name given to
those who inherit by will). Legatees refers only to those people whom the dead person designated as people entitled to receive something from that dead person's estate.
Louisiana has two types of wills (at one time, it had no less than 5): (1) a notarial will where Louisiana law prescribes the format of the will itself, and (2) an oligraphic testament where one hand-writes the entire contents of his will.
A person writing a will must conform to the statutory language governing the type of will that person is preparing or it may be found to be invalid. Sometimes, wills have "savings clauses" in which the preparer states that if any particular part of his will is deemed to be invalid, the remaining parts of the will should be considered still valid.
It is important to note that a person drafting a will may not control the manner in which those inheriting may use or control the items their inherit. When a person inherits an item, that person is free to use the item he inherited in any lawful manner he chooses.
If a person wants to control any part of his estate after his death, he may leave that part in a trust, and the property left in a trust are governed by the dictates of that trust.
An intestate succession is one where a deceased's person's property is governed by law and is passed to persons called heirs. In Louisiana, the law provides that the ownership of a deceased's property becomes solely owned by that person's heirs, whereas the use and fruits of such property becomes "owned" by the deceased's living spouse.
Louisiana law provides for the most benign transfer of property: all property is passed to one's heirs equally, without regard to sex. A deceased's estate will be divided 1/3 each to three surviving heirs, 1/4 each to four surviving heirs, and so on.
If one of a deceased's children died prior to the deceased, but that dead child left his own heirs, those heirs will "step up" and represent their parent to inherit their parent's equal share of their grandparent's estate. For example, suppose a deceased left two live children and two grandchildren of a third dead child. In such an example, the deceased's estate would still be divided into 1/3 for each child, but the deceased's child's would split his 1/3 into 1/2 each, or 1/6.
Usufruct of the Surviving Spouse
The rights of use and to the fruits of a deceased's community property, called a "spousal usufruct", goes to a deceased's surviving spouse for as long as she is alive and does not remarry, provided the deceased did not dispose of his community property before his death or by will.
The purpose of the spousal usufruct is to provide for the care and maintenance of a deceased's surviving spouse so long as she needs such care and maintenance and does not become the wife of another person.
Forced heirs are those descendants who are younger than 24, or who are mentally or physically incapable of caring for their estates, at the time of the deceased's death. Unless he is disinherited, a forced heir is entitled to receive what is known as a forced portion or legitime. If a deceased dies with only one descendant, that deceased may dispose of up to 75% of his estate prior to or upon his death, and 25% will go to his descendant upon his death. If a deceased dies with two or more descendants, that deceased may dispose of up to 50% of his estate prior to or upon his death, and 50% will go to his descendants.
Forced heirs may sue to reduce any amounts given that exceed their forced portion or legitime.
A donation is a contract by which a person, called a donor, divests himself of an item by giving that item to another person, called a donee, and the donee accepts that item.
In general, donations must be made before two witnesses and a notary public, unless otherwise provided by law.
All donations involving immovable property must be in writing to be valid.
An exception to the form of donations involves the donation of corporeal movables, meaning those items that may be touched or seen, such as money or vehicles. In such instances, a donations is accomplished by the donor intending to donate the corporeal movable, the delivery of that moveable, and acceptance by the donee.
A donation is considered complete when the donee accepts the item donated to him. Acceptance may be made in the document evidencing the donation or by taking corporeal possession of the item donated to him. Acceptance of a donated item carries with it ownership of that item.
A donation may be revoked for ingratitude by the donee to the donor. Ingratitude in the law of donations constitutes either the attempted taking of the donor's life by the donee or a finding of cruel treatment, crimes, or grievous injuries to the donor by the donee. In such a case, a donor must file suit within one year from the date he knew or should have know of the ingratitude by the donee.