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CODE II OUTLINE

I. SUCCESSIONS: GENERAL
A. Successions Defined
1. Succession: the transmission of the estate of a deceased person to his successors. Successors have
the right to take possession after complying with applicable law.
a. Estate: property, rights, obligations of D, as well as charges that accrue after his death.
B. Types of Successors
1. Universal: represents D and succeeds to all of his rights and charges.
a. Heirs
b. Universal legatees
c. General legatees
2. Particular: succeed only to certain rights related to a thing sold, donated, or bequeathed to him.
a. Buyers and donees of a particular thing
b. Recipients of a particular legacy
c. Transferees of a particular thing
C. Types of Successions
1. Testate: D dies with a will  successors are called legatees
2. Intestate: D dies with no will or with an invalid or incomplete one  successors are called heirs
D. Choice/Conflict of Laws
1. Successions are governed by the law in effect on the date of D’s death
2. Regarding immovables situated in LA, the legatee must qualify as a person under LA law  so
no legacies to animals or unincorporated associations.
3. Movables  succession is governed by the state in which D was domiciled at the time of his
death
4. Immovables
a. Succession of immovables in LA  governed by LA law
b. Succession of immovables elsewhere  governed by the laws that would be applied by
the courts of the state where the immovable is.

II. INHERITANCE RIGHTS


A. Ways for a Successor to Inherit
1. In his own right  Dad dies, kids inherit
2. By representation  Dad’s brother predeceases dad, when dad dies, brother’s kids will represent
him and inherit
3. By transmission  Dad dies, Dad’s brother then dies before exercising the right to accept or
renounce, it will be transmitted to his kids (heir of an heir)
B. Capacity to Inherit
1. Must be in existence when D dies  children born or conceived, or posthumously-conceived
child that surviving spouse conceived by using deceased husband’s frozen sperm.
2. Conflict of laws: capacity is determined under the law of D’s state of domicile at the time of his
death.
C. Intestate Succession Order
1. Separate Property  nearest relative in highest class will inherit to the exclusion of all others
a. Children (or their representatives)  includes adopted and illegitimate, but NOT foster
b. Parents/Siblings (or siblings’ representatives)
i. Parents only or siblings only
a. Half-blood siblings  divided equally between paternal and maternal lines
ii. If both still alive  parents get UF, siblings get naked ownership
a. If one parent dies, the entire usufruct will accrue to the survivor.

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iii. Father who has only acknowledged an illegitimate child must file a suit to avow
paternity w/in one year of child’s death to be able to inherit.
c. Surviving Spouse  as long as not judicially separated
d. Other Ascendants
i. No representation
ii. If ascendants of equal degree survive on both sides, divide by root: ½ to maternal
ascendants and half to paternal ascendants
e. Other Collaterals
i. No representation
ii. If collaterals of equal degree survive  divide the property by heads (equally
among them)
f. The State
2. Special rule for donation of immovable property  ascendants inherit to the exclusion of all
others if they donated an immovable to a descendant and the descendant dies w/out posterity and
has not disposed of the immovable.
a. If immovable has been donated on a credit basis and the full price is not yet due 
ascendant has a right to recover the proceeds.
b. If any conditions were placed on alienation by the descendant  ascendant will get right
of reversion.
c. Any mortgages donee-descendant put on the property during his lifetime will stay once
the ascendant gets it back.
3. D’s Half of Community Property
a. Naked ownership to children  if child renounces, his descendants will inherit
b. Art. 890 Usufruct to surviving spouse
i. If naked owner is not a child of the surviving spouse, SS will have to give security
ii. Usufruct will continue until SS either dies or remarries
iii. T can dispense with this in the will, either by expressly saying so or by making
an adverse disposition
4. Putative Marriage
a. If both parties in good faith  D’s children will get naked ownership and the two
surviving spouses will split the usufruct
b. If both parties in bad faith  D’s half will be divided equally among the two surviving
spouses
D. Inheritance Rights of Adopted Children
1. Adopted children can inherit from both their adoptive parents and their biological parents.
a. If a married person is adopting a child, the concurrence of the spouse is required.
2. However, biological parents whose children have been adopted can NOT inherit from them,
unless it is a stepparent adoption.
E. Inheritance Rights of Illegitimate Children
1. Children bought outside of a marriage inherit to the same extent as children born within the
marriage if:
a. They have been formally acknowledged;
i. Authentic act or signing the birth certificate
ii. Child can’t be filiated to another man and mother must concur.
b. The parents subsequently marry and acknowledge the child;
c. The child timely files a paternity action; or
i. Burden of proof on child by preponderance (if dad alive) or C&C evidence (if dad
is deceased).
ii. One-year preemptive period from father’s death.
d. The father timely files an avowal action.

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i. This must be done for a child born outside of the marriage, even if there is a
presumption of paternity.
ii. Burden of proof on the father by a preponderance.
iii. Time limits
a. If child is presumed the child of another man:
1. One year from date of child’s birth
2. Unless mother deceived the father about his paternity in bad faith,
then one year from the date he knew or should have known, or within
10 years of child’s birth, whichever occurs first.
3. In either event, within 1 year of child’s death
b. If child is not presumed child of another man: within 1 year of child’s
death.
F. Representation
1. Takes place in the descending and collateral lines only.
a. Descending:
i. Representatives will split pro rata the share of the predeceased ancestor who they
represent.
ii. Example: Father dies, his son has predeceased him, so the son’s kids will split his
part of the succession.
b. Collateral
i. Only allowed for descendants of brothers and sisters
ii. Example: Brother dies, his sister would have inherited but predeceased him, so the
sister’s kids will represent her.
2. Renunciation: if you renounce your right to succeed from someone, you may still represent that
person.
3. Forced heirs: representation is limited to grandchildren whose parent has predeceased the
decedent and would not have attained age 24 at the time of D’s death or grandchildren whose parent
predeceased the decedent and who are “permanently disabled.”
G. Presumption of Survivorship
1. Rule: if there are no facts to show who died first in a common disaster, each person who perished
is basically presumed to survive the other. The burden of proof to establish survivorship is on the
person claiming through the alleged survivor.
2. Short-term survivorship clause with a suspensive condition: okay to put in your will, as long as
the period does not exceed 6 months.
H. Seizin
1. Successor acquires ownership (“is seized”) of D’s property immediately upon D’s death.
a. Universal successors: acquire ownership “of the estate.”
b. Particular successors: acquire ownership “of the things bequeathed” to him.
2. Prior to the appointment of a succession representative, the successor may exercise ownership
rights – can even LAE the property.
I. Unworthiness
1. An heir or legatee who has been declared unworthy is deprived of the right to inherit.
2. Action may be brought by a person who would succeed in place of or in concurrence with the
unworthy successor, or by anyone who claims through such a person.
a. If the person who would succeed is a minor or interdict, the court may appoint an attorney
to pursue and investigate the claim.
3. Grounds for unworthiness:
a. Conviction or judicial declaration of the intentional, unjustified, or attempted killing of D.
b. A governor’s or statutory pardon will not remove the unworthiness.
4. Timing: must be brought in D’s succession proceeding

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5. Prescriptive period: 5 years from date of death (intestate) or probate/filing of the testament
(testate).
6. Effects: the devolution of rights of the unworthy successor as if he predeceased D.
a. Intestate: as if unworthy successor predeceased D.
b. Testate: look to the testament, if there is no provision for lapsed legacies, the rights
devolve as though the unworthy successor predeceased D.
7. If the unworthy successor has a minor child who inherits, neither parent will get a usufruct over
the property.
8. Other effects: can’t claim as a forced heir or serve in any fiduciary capacity in D’s succession
9. Obligations: return (with fruits and products) or account for any succession property.
10. Curing unworthiness: reconciliation or forgiveness.
J. Acceptance and Renunciation
1. Presumption of acceptance
a. Successor may be compelled to accept or renounce “for good cause.”
b. Minor is deemed to accept, but his representative may renounce when authorized to do so
by the court.
2. Rules for both
a. Can’t accept or renounce before D’s death or before you know about D’s death 
premature acceptance or renunciation is absolutely null.
b. Must know of your rights as a successor to accept/renounce.
c. Acceptance or renunciation of a succession is null if a will is later probated (intestate) or
the will is annulled or the rights are altered, amended, or revoked by subsequent codicil
(testate).
3. Creditors
a. Can prohibit a debtor’s renunciation of a succession to the extent of the debt.
4. Acceptance
a. Formal
i. Express and in writing; or
ii. Assuming the quality of a successor in a judicial proceeding (i.e. petition for
possession)
b. Informal
i. Act that implies intent to accept (i.e. taking possession of the property)
ii. Need knowledge and/or an intention to accept  must know that the property
belongs to D’s estate.
iii. Must be an act of ownership, not a custodial act
c. Act of renunciation  gratuitous or for a price
5. A successor who accepts will be liable for the estate debts up to the value of the property he
received.
6. Renunciation
a. Must be express and in writing, but an authentic act is not required
b. Effects
i. Intestate succession: accretion flows as if renouncing heir predeceased D.
ii. Testate look to the testament, otherwise accretion flows as if renouncing heir
predeceased D.
c. It is possible to accept an original inheritance and renounce what comes by accretion.
d. Capacity: need capacity to alienate property, but a minor’s tutor may renounce with court
authorization.
K. Payment of Estate Debts
1. Liability of successors to creditors

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a. Universal successors: liable for estate debts and administration expenses, to the value of
the property received by them. Joint, not solidary, liability for successors.
b. Successors as creditors: no effect on the order on which creditors are paid, there is no
benefit or detriment to being a creditor/successor.
2. Order of payment:
a. First, secured creditors  in accordance with the preference and priority of their security
rights.
b. Next, unsecured creditors  share pro rata with other unsecured creditors.
3. New creditor: when a new creditor asserts rights after court-ordered distribution or payment, this
is the order from which his claim will be satisfied:
a. From assets remaining under administration of the estate; then
b. From the successors to whom distribution has already been made; and then
c. From unsecured creditors who received payments, but only in proportion to the amount
they received and only for the share of the new creditor.
4. Apportionment of debts among successors
a. Look to the testator’s will, or to the agreement of the successors themselves  however,
these types of arrangements cannot impair a creditor’s rights.
b. Estate debts attributable to identifiable property  chargeable to that property and its
fruits/products
c. Debts of D are charged ratably to property that is the object of general and universal
legacies and property that passes by intestacy, valued at date of death. If that property is
insufficient, the remaining debts are charged to:
d. Ratably to fruits/products that is the object of general and universal legacies and property
that devolves by intestacy.
e. Ratably to the fruits/products of property that is the object of particular legacies.
f. Ratably to the property that is the object of particular legacies.

III. DONATIONS
A. Questions to ask
1. Capacity to donate and to accept
a. Did capacity exist?
b. Vices?
2. Are form requirements met
a. MC donations: must be made by testament  otherwise, absolutely null
b. IV donations: depends on the object
3. Have any substantive limits been violated
a. Reprobated dispositions
b. Prohibition on donations omnium bonorum
i. DOB = disposing of your property in its entirety through IV donations  need to
keep at least enough for your subsistence
ii. DOBs are void
a. Donation of movable is null
b. Donation of immovable is null, unless it has been alienated by onerous
title (donee must return the value) or is subject to real right (donee is
accountable for the diminution in value)
iii. Action to nullify
a. May be brought by donor during his lifetime or by heirs after his death
b. Is imprescriptible
B. Types
1. Donation inter vivos

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2. Donation mortis causa
C. Capacity to Donate
1. Everyone is presumed to have capacity, except for those whom the law has declared do not have
capacity.
2. Timing
a. IV donation: capacity to donate must exist when the donor makes the donation
b. MC donation: capacity to donate must exist when the testator executes the testament
3. Age
a. Minor under age 16: cannot make either type of donation unless its to spouse or children.
b. Minor between ages 16-18: may execute a will, but cannot make IV donations unless its
to spouse or children.
4. Mental condition
a. Donor must be able to comprehend generally the nature and consequences of the
disposition he is making.
b. Proof: burden is on the party challenging capacity; must prove inability to comprehend by
C&C evidence.
c. Interdicts:
i. Full: no capacity
ii. Limited: presumed to have the capacity to make MC or IV donations of any
property that is not under the care of the curator; prohibited from making IV
donation of property under care of the curator; presumed to lack capacity to make or
revoke MC donations of property under care of the curator  these presumptions
may be rebutted by a preponderance of the evidence.
5. Vices of Capacity
a. Fraud  donation is null
b. Duress  donation is null
c. Undue influence  donation is null when it is the product of influence by the donee or a
third person that so impaired the donor’s volition as to substitute the former’s volition for
the latter’s.
i. Burden of proof:
a. General: C&C
b. Related by affinity: C&C
c. Relationship of confidence: preponderance
d. People who commit fraud, exercise duress, or exert undue influence will not be permitted
to serve the successor’s estate in a fiduciary capacity either.
6. Conflict of laws – capacity  person will be presumed to have capacity if, at the time of making
the testament, he possessed that capacity under the law of
a. State of domicile at time of death; or
b. State of domicile at the time of making the testament.
c. Determine vices of capacity using the laws of whichever state D is capable in.
D. Capacity to Receive
1. Donee must be in existence at the time of the acceptance of the IV donation and at the time of
D’s death for MC donations
a. Unborn child must be in utero, and then born alive from the donation to be effective.
b. Exception: if SS uses deceased father’s gametes where he consented in writing and the
child is born w/in 3 years of father’s death, child can inherit from father.
c. Organization must exist at the time the donation takes effect.
d. If there is a suspensive condition: donee must have capacity at the time the condition is
fulfilled.
e. If a gift to a minor is given in trust, tutors or trustees can accept.

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E. Reprobated Dispositions
1. Prohibited substitutions
a. Three elements
i. Two consecutive donations to two different donees in full ownership;
ii. A charge to the first donee to preserve the property for the second; and
iii. A charge to the first donee to deliver the property to the second donee at his
death.
b. Trusts are not prohibited substitutions, i.e. charge to preserve property for a child and
deliver it when the child turns 25.
c. Lifetime usufructs are also acceptable.
d. Effect: the prohibited donation will lapse, but the rest of the testament is valid.
2. Vulgar substitution: survivorship clauses for a specified period 6 months or less is fine.

IV. DONATIONS MORTIS CAUSA


A. Testaments, General Info.
1. Forms
a. Olographic  entirely written, signed, and dated in T’s own hand.
i. Additions and deletions: valid if in T’s handwriting (do not need to be dated or
signed).
ii. Signature should be at the end of the will, but court has discretion to consider
anything written afterwards as part of the testament.
iii. Date can appear anywhere on the testament  date does not need to be certain,
but must be “reasonably ascertainable.”
b. Notarial  authentic act executed in the presence of a notary and 2 Ws, with attestation
clause for each witness; signed by T; dated on each page.
c. A testament that does not comport w/ the form requirements is absolutely null.
2. Other requirements
a. Testamentary intent
i. Pre-printed will forms: strike out all of the pre-printed parts and see if there is
testamentary intent evident from just the part T wrote himself.
ii. Letters and memos: generally, not valid olographic wills. Especially if there is
extra information in there.
3. Conflict of laws  testament is valid if in writing and made in conformity with one of the follow
states:
a. LA law;
b. Law of the state of making at the time of making;
c. Law of the state of T’s domicile at the time of the making of the testament OR at the time
of death; or
d. (With regards to immovable property) The law that would be applied by the courts of the
state in which the immovable is situated.
4. Prohibited
a. Joint or third-party (mandatary, agent) testaments.
b. Dispositions committed to the choice of a third person.
5. Only effective if probated
a. Olographic will: two witnesses must identify T’s handwriting
B. Exempted from Form Requirements
1. Life insurance  payable to designated beneficiary; will only go into the succession if payable to
the estate
2. IRA  paid to the designated beneficiary, even if T indicates a beneficiary to the IRA in his last
will and testament

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3. US Savings Bonds  Named payee will get the funds (BUT, cannot be used to defeat the rights
of forced heirs)
C. Notarial Testaments
1. Standard
a. Executed in front of notary and 2 competent Ws
i. T must declare in front of the notary and 2 Ws that the document is his will
ii. Void if witnesses are not physically present when the will is signed
b. May be written, printed, or typed
c. Must be signed on each page and at the end of the will
d. Date can be anywhere, does not need to be made by T, and does not need to be dated in
front of the notary and 2 Ws.
e. T must know how to and be able to read
f. Attestation clause  Ws and notary sign the attestation clause and do so in the presence
of T and each other (T does not need to sign it)
2. T can read, but is physically unable to sign his name
a. T may make his mark, or direct another person to make it for him if he cannot physically
do so  mark must be on every page and at the end of the testament.
b. Attestation clause  Ws and notary sign the attestation clause and do so in the presence
of T and each other, signify that T declares the instrument to be his will and that he is able
to see, read, and sign his name, but cannot do so because of a physical infirmity, and has
affixed his mark.
3. T is sight-impaired but cannot read
a. Execution  written and executed in front of notary and 2 Ws, T declares that he heard
the will being read and signs or marks every page and at the end. If unable to sign, must
state the reason why.
b. Testament must be dated and read aloud to T  witnesses and notary must follow along
on copies
c. Attestation clause  will was read aloud
d. Any person can execute a will this way, even if they would qualify to execute a standard
notarial testament
4. Braille testament
a. 2 Ws required
b. No need to read aloud
c. T must know how to read Braille
d. Attestation clause  must be in writing
5. T is deaf or both deaf and blind
a. If T unable to sign, may declare or signify by sign language or visual English that the
document is his will and mark each page.
b. Attestation clause  must state that T is physically unable to sign his name and has
declared the document to be his will. This clause must be in writing.
c. At least one Ws must be a certified interpreter for the deaf.
d. T must be given choice of accomodations such as large print, Braille, or a tactile
interpreter.
D. Competency of Witnesses
1. Cannot be insane, blind, or unable to sign your name.
2. Cannot be under age 16.
3. Cannot be a legatee or spouse of legatee (even if you don’t know of the legacy)  that legacy
will be invalid.
a. If the legatee or spouse would have been entitled to inherit as an intestate, he or she may
inherit the lesser of the intestate share or the legacy.

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b. Legatee may not serve as notary either, and the special intestate share rule does not apply.
4. Special rules:
a. Deaf people: may witness a regular notarial testament, but not one for sight-impaired
people or people who cannot read.
b. Illiterate people: may not witness a notarial testament for sight-impaired people or people
who cannot read.
E. Executors and Attorneys
1. Naming of an attorney in the will is not binding on the executor.
2. Estate attorney may be removed for “just cause.”
3. Testator may not give a gift to the executor to bequeath to whom he sees fit, but he is allowed to
choose what assets are used to satisfy a bequest made by value or quantum (as long as T selects the
value or quantum). T may also authorize the executor to select the charity to which to give a legacy.
F. Classification of Legacies
1. Universal
a. T gives to one or several people the whole of the property; or
b. T gives one or several people the “residue” of the estate after particular legacies.
2. General
a. A legacy of a fraction or certain proportion of the estate or of the residue.
b. A disposition of property expressly described by T as all or a fraction of one of the
following categories:
i. Separate or community
ii. Movable or immovable
iii. Corporeal or incorporeal
3. Particular: a legacy that is neither general nor particular (generally a bequest of specific
property).
G. Joint vs. Separate
1. Joint: a legacy left to two or more persons without an assignment of parts or shares, so the
legatees take an equal percentage of the whole  “To C, J, and T”
i. Joint legacy will accrete to other joint legatees ratably if one of the joint legatees
predecease the testator.
ii. If one of the joint legatees dies after the testator, the legacy does not accrete  rather it
will go to that legatee’s successors.
iii. When property is left to two or more people and cannot be partitioned, it is presumed to
be joint.
iv. “Share and share alike” does not effectuate a joint legacy.
2. Separate: a legacy left to two or more persons where T assigns shares  “Half to R, one-fourth
to S, one-fourth to J”
H. Testamentary Accretion
1. Grounds for lapse
a. Legatee predeceases T
b. Legatee is incapable of receiving at time of T’s death
c. Legacy is subject to suspensive condition that can no longer be fulfilled or legatee dies
before it is fulfilled
d. Legatee declared unworthy
e. Legacy is renounced  lapse is only to the extent of the renunciation
f. Legacy declared invalid  legacy to witness, spouse of witness, or notary
g. Legacy declared null  fraud, duress, undue influence.
2. Effect of Lapse: accretion (as if L predeceased T)
a. Lapse of general or particular legacy  goes to successor who would have received the
property under the testament if the legacy had not been made.

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b. Lapse due to renunciation  either according to governing testamentary disposition, or
goes to the successors who would have gotten the property had L predeceased D.
c. Most favored class rule  if the lapsed legatee is a child or sibling of T, or a descendant
of T’s child or sibling, accretion takes place in favor or descendants of the legatee.
d. All lapsed legacies not disposed of using the above rules  go to universal legatee
e. Any portion that does not accrete to universal legatee  devolves by intestacy.
i. Look for situations w/ no universal legatees, or the universal legacy is
revoked/invalid, or the property is not addressed in the will.
3. Extinction: different from lapse. Extinction happens when the object of the legacy is lost,
destroyed, or extinguished before T’s death.
a. Legatee is entitled to
i. Any remaining part of the property
ii. Any uncollected insurance proceeds
iii. T’s right of action against the person liable
b. No extinction of the object is transformed (i.e. stock is redeemed and different stock is
issued) or condemned/expropriated (legatee is entitled to any uncollected award and to T’s
right of action)
I. Priorities in Disbursing Bequests
1. Testament governs  there may be an express declaration of preference
2. Priority to particular legacies
3. If succession is not sufficient to discharge all bequests and T has not expressly stated a
preference, the order is as follows:
a. Specific things
b. Groups and collections
c. Distribution of cash legacies
J. Revocation and Modification of Testaments
1. T may revoke his will at any time  either totally or in part
a. Revocation may be express or tacit
b. Cannot renounce the right to revoke or agree to exercise the right if a specified condition
happens.
2. Revocation of entire testament
a. Authentic act (however, cannot use auth. act to add or modify)
b. Signed writing
i. Entirely written and signed by T that identifies the testament to revoke and clearly
expresses the intent to revoke
ii. Does not need to be dated
c. Statement in new will  declare that you revoke all prior wills
d. Physically destroy the will or direct someone else to do it
i. If a testament cannot be found after T’s death but was readily accessible to T
before his death, it will be presumed that T destroyed the original will with intent to
revoke.
ii. To rebut the presumption, the proponents must present clear proof:
a. That D made a valid testament,
b. Of the contents of the testament, and
c. That the testament was not revoked by T.
iii. Multiple originals: only have to destroy one
e. Methods of revoking an IV donation: subsequent incompatible IV donation
3. Result of valid revocation: intestacy or revival of an earlier, non-revoked testament.
4. Revocation of a legacy or testamentary provision
a. Declaring so in one of the forms of a testament (olographic, notarial)

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b. Subsequent incompatible testamentary disposition
c. Subsequent IV disposition of the thing and not reaquiring it  watch for situations where
T gets the property back before he dies (in this case, the legacy won’t be revoked)
d. Making a signed writing on the testament itself
e. Divorce after execution of the testament, unless the testament provides to the contrary 
cannot remarry before T’s death
f. Tacit revocation
i. Subsequent incompatible MC donation
ii. Sale or donation of the bequeathed property (exception for cash legacies)
g. Revocation of legacy in olographic will  strike-outs may be enough to revoke if done
by T
h. Revocation of legacy in notarial will  strike-outs must be signed by T. To add or revise
a disposition, the charge must be signed and dated.
5. Any other modification to a legacy (i.e. changing executors) must be in the form of a testament.
K. Interpretation of legacy:
1. T’s intent controls the interpretation of his testament
2. Testamentary dispositions are to be interpreted to refer to the property owned at the time of his
death, unless clearly expressed to the contrary
3. Contrary provisions w/in same testament  the one written last will prevail; and little legacy will
prevail over big legacy.
4. Legacy to creditor: will only be applied toward the satisfaction of the debt unless T clearly
indicates otherwise.
5. Conflict of laws
a. Meaning of words and phrases in a testament is determined by the law of the state
expressly designated by T or the law of the state clearly contemplated by him when making
the testament.
b. If there are no such selections, use the law of the state in which T was domiciled at the
time the testament was made.

V. FORCED HEIRSHIP
A. General
1. Who is a forced heir?
a. Child of T that has not reached the age of 24 at the time of T’s death
b. Child of predeceased child of T, as long as the predeceased child would not have reached
age 24 at the time of T’s death
c. Child or grandchild of any age who is disabled (disability must exist at the time of T’s
death)
i. Physical infirmity; or
ii. Mental incapacity that is so severe that FH is permanently incapable of taking
care of his person or administering his estate
d. Child of T who may later become unable to take care of self or administer estate because
of an inherited, incurable disease (i.e. bipolar disorder, high blood pressure, alcoholism) 
must exist at time of T’s death and there must be medical documentation.
e. Includes illegitimate and adopted children
2. What does a forced heir get?
a. The part of the estate reserved for all of the forced heirs is the forced portion (the rest of
the estate is the disposable portion).
i. If 1 FH, ¼ of estate
ii. If 2 or more FHs, ½ of estate.

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b. The part of the forced portion that each FH gets is the legitime  divide forced portion
by number of forced heirs.
i. Special rule: use lesser of the legitime and the intestacy share.
3. How to satisfy the legitime?
a. Naked ownership (w/ SS usufruct)
i. SS usufruct may be either legal or testamentary
ii. Testamentary SS usufruct
a. May be granted for life, will not necessarily terminate upon remarriage
b. May be granted the power to dispose of nonconsumables (house, real
estate, stock)
c. No impingement on legitime
d. Not required to provide security unless expressly required by T or as
permitted when legitime is affected  FH must request it, if he is not a child
of SS or to the extent that the usufruct affects separate property
b. Full ownership
c. Placing the property in trust  must be distributed “as needed”
d. Survivorship condition  okay if both FH and his descendants do not survive past the
stated period
4. Change of forced portion after T’s death: if the FH renounces or is disinherited or declared
unworthy, his legitime becomes disposable and the forced portion is reduced accordingly. The
legitime of each remaining forced heir is not affected.
B. Disinherision of Forced Heir
1. Must be done in one of the forms prescribed for wills, and made expressly and for “just cause.”
Cannot be done in advance.
2. Just cause:
a. Striking the parent
b. Cruelty of “grevious injury.”
c. Attempted murder of parent
d. Accusing the parent of a capital offense “without any reasonable basis”
e. Using violence against the parent to prevent the will from being executed
f. Minor child marrying w/out parent’s consent
g. Conviction of a felony for which the punishment could be life imprisonment or death by
the child
h. After attaining the age of majority, failing to community with the parent for two years,
without just cause (unless the child is in the US military at the time)
3. Presumption: the grounds stated are presumed to be true, but the heir may overcome the
presumption
a. May rebut by proving that the grounds are not true by a preponderance  heir’s
unsupported testimony is not enough
b. Prove reconciliation with T after the events giving rise to the disinherision by C&C
evidence (i.e. writing signed by T)
c. Proof of a defense by a preponderance
i. Because of age or mental capacity, FH was not capable of understanding the
impropriety of his behavior
ii. Behavior was unintentional
iii. Behavior was justified under the circumstances
4. Disinherision by grandparents may be made for any of the above grounds except marrying w/out
consent.
5. Timing:
a. Personal action: if disinherited child predeceases T, his children can still represent him.

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b. Person may be disinherited even if he was not a forced heir at the time the grounds for the
disinherision occurred (i.e. major child becomes disabled)
C. Rights of Forced Heirs
1. Right to reduce excessive donations
a. Action to reduce
i. Must be brought after T’s death
ii. Must be raised by someone entitled to enforce the action (i.e. a forced heir)
iii. Strictly personal  can be brought by FH, his successors, or an assignee. NOT
by creditors.
b. Calculation of estate
i. Active mass = value of all estate property (including D’s half of CP) + value of IV
donations in last 3 years (value at time gift was made) – debts.
ii. Apply proper legitime fraction to active mass
c. Excluded from the calculation
i. IV donation to spouse of previous marriage made during the marriage
ii. Remunerative donations
a. Unless value of services is less than 2/3 of the value of the property 
then, include the gratuitous portion
iii. Onerous donations
a. Unless expenses incurred by donee in carrying out the conditions is less
than 2/3 of the value of the property  then, include gratuitous portion
iv. Immovables, if D is domiciled outside of LA at time of death and does not leave
any FHs living in LA at time of death
v. Life insurance proceeds (additionally, if the proceeds are payable to or “for the
benefit of” a FH, they will count against his legitime)
vi. Pensions and profit-sharing plans (including IRA accounts  if the proceeds are
payable to or “for the benefit of” a FH, they will count against his legitime)
d. Order of reductions
i. MC donations
a. T can designate order
b. If he does not, particular legacies take preference over universal legacies if
there are enough assets in the probate to satisfy the legitime.
ii. IV donations once probate is exhausted
a. Order: most recent first, then work your way back
b. Exception: can skip over an insolvent donee
e. Donee’s options
i. Donee may either return or take less.
ii. If he has alienated the property, he must return its value at the time he received it
from D
iii. If the property has been encumbered, donee is responsible for paying back the
diminution in value
iv. Must give back fruits & products, but only after written demand by FH
v. Donee does not get credits for improvements
f. Prescriptive period
i. IV gifts: 5 years from donor’s death
ii. MC donation: five years from date of probate of will
2. Right to demand collation

VI. COLLATION
A. Who Can Demand Collation?

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1. Child of D who qualifies as a forced heir at the time of D’s death
2. Child of FH inheriting by representation  MAYBE. Case law is not clear.
B. Who Must Collate?
1. Applies only to children or grandchildren of T  those who have been given gifts while T was
alive must give them back to the succession when T dies.
2. Legal presumption that parent intends to treat all kids the same
3. Only applies to those who are called into the succession of the donor  so unworthy child, child
who renounces, etc. does not have to collate
4. Only applies to donees who were “presumptive heirs” at the time the gift was made
5. Gifts made to a grandchild by the grandparent during the life of the parent are likewise
excluded
C. Presumption of Collation
1. Collation is presumed unless it has been expressly forbidden or waived.
2. Waiver: in act of disposition, in subsequent auth. act, in a will (must be express and unequivocal;
leaving the disposable portion to the heir from which collation is demanded does not count)
D. What is Subject to Collation?
1. IV gifts made w/in 3 years of donor’s death
2. Valued as of the date of the gift
3. Does not apply to legacies or MC donations
E. Exempt from Collation
1. Manual Gifts  delivered by mother, father, or other ascendant by their own hand to their
children  i.e. birthday gifts, Christmas presents, customary/usual gifts
2. Gifts for funds spent for the use and benefit of the donor during his lifetime
3. Board, support, and education expenses  donee is in school or in a necessitous position
4. Marriage gifts that do not exceed the disposable portion
5. Gifts made more than 3 years before D’s death or received by those not required to collate
F. Collation Procedure
1. Types
a. Collation in kind  giving the gift back to the succession
b. Collation by taking less
2. Collation of immovable
a. Can be done either in kind of by taking less, unless it has been sold (then donee must take
less)
b. Reimbursement for expenses  coheirs must reimburse necessary and useful expenses,
but not those for mere pleasure (but donee may remove those if he can do it without
damaging the property)
c. Donee is liable for damage caused by his fault or negligence
i. In kind: if the property is subsequently destroyed w/out fault of the donee, the
succession bears the loss.
ii. Taking less: donee bears the loss
iii. If the loss is only partial, the property will be collated in the state it’s in.
3. Collation of immovable: done by taking less, unless it’s a collation of money.
G. Misc. Rules
1. Cannot demand collation after a judgment of possession has been rendered if the claimant
participated in obtaining the judgment.
2. Cannot demand collation of the entirety of community property  only the decendant’s half.
H. Action to Declare Simulation
1. Defined: a simulation is a contract that the parties agree does not express their true intent
a. The true intent can be expressed in a separate writing called a counter-letter.
2. Types

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a. Absolute: intended to produce no effects; ownership does not transfer
i. Since title is not transferred, there is no need to collate
b. Relative: intended to produce different effects than the ones expressed in the contract (i.e.
disguised donation)
3. A simulation is an absolute nullity and the entire property is brought back into the legitime.
4. The following are not simulations
a. Disguised donation: sale of immovable property from parents to children where no real
purchase price was paid or where the price was ¼ or less than the real value.
i. Since title is transferred, it can be attacked
b. Advantage: If a parent sells a thing to his child at a low price or bought something for the
child or spent money to improve the child’s estate  subject to collation
5. An action to declare a subscription is imprescriptible
I. Prescription
1. Ten years from date of death

VII. THE MARITAL PORTION


A. General Info
1. Awarded when one spouse dies “rich in comparison” to the other
a. No set calculation, but look for a 5:1 ratio or more
b. “Poor” spouse’s earning capacity irrelevant
c. “Poor” spouse may claim if she cannot sustain the same standard of living
2. May be claimed by a separated “poor” spouse upon proof that the separation occurred w/out
their fault
3. Personal/nonheritable right
4. 3 year PP from date of death to claim
5. Right to advances
6. Calculation
a. 0 children: ¼ of succession in full ownership
b. 1-3 children: ¼ of succession in UF for life
c. 4+ children: usufruct of child’s share of the succession for life (i.e. if there are 5 kids, SS
will get 1/6).
7. Legacy left and payments due to SS should be deducted from marital portion

VIII. DONATIONS INTER VIVOS


A. General
1. A donation inter vivos is an
a. At present,
b. Gratuitous, and
c. Irrevocable
d. Divestment by the donee,
e. Which the donor accepts
2. Types
a. Gratuitous: made w/out conditions
b. Onerous: burdened with charges imposed on donee that result in a material advantage to
the donor
c. Remunerative: meant to compensate the donee for services previously rendered
3. Relevance of classifications: form rules for IV donations will not apply to onerous or
remunerative donations unless the cost of the charges or value of the services is less than 2/3 of the
value of the donated thing valued at the time of donation.
B. Requirements of Valid Donation

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1. Proper form  act of donation
a. Shall identify donor and donee
b. Must contain an adequate description of the thing donated
(can use extrinsic evidence to clarify identification or description if necessary; donation can
also be confirmed by donor)
c. Immovable: donation and acceptance must both be recorded to affect 3rd parties
d. Corporeal movable:
i. Manual delivery to donee (no further formality required)
ii. Authentic act (delivery is not necessary)
e. Incorporeal movable
i. Donation or acceptance of incorporeal movables evidence by certificate,
document, instrument, or other writing and made transferable by endorsement or
delivery may be made by authentic act or in accordance with the rules particular
to the specific type of incorporeal immovable
a. Negotiable and non-negotiable instruments  LA commercial laws
b. Money represented by a check  donation is complete when check is
cashed (if donating the check itself, delivery or auth. act is enough)
c. Bank account: not a completed donation if donor retains control or the
right to withdraw funds
d. Bearer bonds  manual delivery
e. US Savings bongs  governed by US federal law
f. Art. 1550: “investment property” may be donated by a writing signed by
the donor that evidences donative intent and directs the transfer of the
property to the donee or to his account or for his benefit  acceptance is
evidenced by completion of the transfer process. Property that can be donated
this way includes:
1. Stock (certificates or otherwise)
2. Mutual funds
3. Most bonds (see above)
4. CD in an investment account
5. Annuities in an investment account
2. Donative intent
3. Irrevocability
4. Present property  donation of future property is null
5. Lawful conditions  donation with conditions that are “contrary to good morals” will be null
a. IV donation conditioned on donor’s will (whim or caprice) is null
b. IV donation conditioned on payment of future debts that have not been expressed in the
act of donation is null.
c. Right of return should the donor survive the donee (or his descendants) is permissible 
the donated thing will return to the donee free of LAE made by the donee or successors after
the donation took place
6. Acceptance by Donee
a. Must be w/in lifetime of donor AND donee
b. Can be anticipatory
c. Movable: acceptance when donee is put into corporeal possession
d. Immovable: subsequent alienation or encumberance by donee
e. Donee takes the thing subject to all charges, even those the donee imposes after donation
but before acceptance
f. Donee must accept the donation personally, with some exceptions

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i. If delivery is made to an agent or mandatary, acceptance is complete if acceptance
is w/in the scope of the mandate
ii. Parent/ascendant or tutor can accept on behalf of a minor (even if that person is
also the donor)
iii. Creditors MAY NOT accept.
C. Revocation and Dissolution
1. Donation may be revoked for ingratitude of donee (1 year PP from the date donor knew or
should have known of the act of ingratitude  only donor may bring this action, but his successors
may continue it after his death)
a. Killing or attempted killing of donor
b. Cruel treatment or grevious injury  “any act naturally offensive to the donor”
2. Effect of revocation
a. Revocation for ingratitude does not affect LAE made by the donee before the action to
revoke is filed.
b. For LAE made after the action is filed:
i. Movables: effective against donor only when it is an onerous transaction made in
good faith by the transferee, lessor, or creditor
ii. Immovables: effective against donor if the revocation has not been filed for
registry
c. Donee must return the thing donated and any fruits/products  if he is unable to do so, he
must restore its value at the time the action to revoke is filed.
3. Donation may be dissolved for
a. Nonfulfillment of suspensive condition  donation is dissolved of right when the
condition can no longer be fulfilled
b. Occurrence of resolutory condition  donation may be dissolved by consent of parties
or by judicial decree
c. If a donation is made on a condition or charge that the donee has the power to perform or
prevent, the donation can only be dissolved by consent of the parties or by judicial
decree. There is a 5 year PP from date the donee fails to perform the condition or fulfill his
obligation or ceases to do so.
d. Return of donated thing
i. Immovable: must be returned even if donee has alienated by onerous title  if
subject to 3rd party rights, donee must pay the diminution in value.
ii. Movable: LAE is effective against donor only when it is an onerous transaction
made in good faith by the transferee, lessor, or creditor
iii. Fruits and products: donee or his successor must restore or pay the value of the
fruits and products from the date of written demand.
iv. If the donee cannot return the thing in the same condition it was in at the time of
donation, the donor may accept it and hold the donee liable for any diminution in
value.

IX. TRUSTS
A. Defined
1. 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.
B. Parties
1. Trustee: administers the trust
a. Named by the settlor or chosen in the manner directed in the trust instrument
b. Requirements
i. Natural person: US citizen or resident alien

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ii. Institutional: must be FDIC organized by LA, other state, or US laws; or financial
institution or trust company authorized to exercise trust or fiduciary powers under
LA or US laws.
iii. Charity: charitable organizations may be the trustees of charitable trusts
iv. Settlor can be trustee (can also be beneficiary)
c. Selects trust attorney
d. Powers:
i. Buy, sell, lease (even beyond term of trust), and mortgage
ii. Borrow funds or obligate the trust
iii. Limits: self-dealing transactions
e. Duties:
i. Fiduciary  duty of loyalty
ii. Act as reasonably prudent person
iii. Account and notify beneficiary, take steps to preserve and protect trust property
 held to higher standard than reasonable person
2. Settlor: creates the trust
3. Beneficiary: benefits from the trust
a. Requirements
i. Principal beneficiary: benefits from the property placed in trust
a. Successive principal interests are not permitted
ii. Income beneficiary: benefits from any income generated by that property
a. Successive and concurrent income interests are permitted
b. Trustee may choose beneficiaries among which to distribute income 
subject to a challenge for abuse of discretion
b. Requirements
i. In being and ascertainable when trust is created  unborn child later born alive
counts
C. Proper Courts
1. Court agreed upon by all trustees, beneficiaries, and living settlors
2. Court designated in the instrument
3. If no court designated or agreed upon, any of the following is proper:
a. District court of settlor’s domicile at the time the trust was created
b. District court of trustee’s domicile (if domiciled in LA)
c. District court of an agent for service of process for any non resident trustee
d. 19th JDC (if no court satisfies the above criteria)
D. Types of Trusts
1. Inter vivos/Testamentary
2. Revocable/irrevocable
a. If revocable, settlor reserves the right to modify, amend, or revoke  settlor may
expressly delegate the power to revoke or terminate in the trust instrument or in a power of
attorney executed in authentic form referring to the trust.
b. Revocation: as if the trust never existed  trust returns to settlor
c. Termintion: trust goes to beneficiary
d. Upon settlor’s death: revocable trust becomes irrevocable.
e. Default: irrevocability
3. Class trusts:
a. Can be created with respect to all or a portion of income or principal  members of the
class must always be the sole beneficiaries of the portion of the trust of which they are
beneficiaries.
b. Relations allowed in class trusts:

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i. Descendants up to great-grandchildren
ii. Collaterals and their descendants, up to great-grand nieces and nephews
iii. At least one member must be “in being” when the class is created.
c. Deceased member’s interest vests in his heirs or legatees unless the trust provides
otherwise
d. Closing
i. Class must close when it is no longer possible to have another member of the
class; or
ii. Can stipulate an earlier date for the class to close
e. Termination: ends when the last member of the class dies, unless an earlier date is
specified.
4. Charitable
a. May exist in perpetuity
b. “Split interests” (part is private and other part is charitable) are permitted  i.e. income
to SS for life, principal to Tulane University
c. Trustee of split interest trust may also be the charitable organization beneficiary
E. Form requirements
1. IV trusts
a. Executed in the presence of notary and 2 Ws, or
b. By act in front of 2 Ws and then duly acknowledged (by settlor or one of the witnesses)
2. Testamentary
a. Must be in the form of a will
3. Recordation: must be recorded if the trust owns immovable property. Either trust itself or an
extract must be recorded  the extract must contain:
a. Name of the trust, if any
b. Statement as to whether the trust is revocable or irrevocable
c. Name of each settlor (and signature of each settlor, if an IV trust)
d. Name of each trustee
e. Name or other description of each beneficiary
f. Date of execution
g. Brief description of the property subject to the trust (the title of which much be recorded
to affect 3rd persons)
F. Creation of a Trust
1. Trust will take effect:
a. Testamentary trust: date of settlor’s death
b. IV trust: date of execution
c. Acceptance by trustee relates back to creation (if trustee does not accept, court will
appoint one)
G. Delegation of Authority
1. Trustee may delegate the performance of ministerial duties and acts that he could not be
reasonably required to perform personally (by power of attorney)
2. Trust may delegate the power to modify the trust, but only if the beneficiaries whose rights are
affected are descendants of the person giving that authority
3. Settlor may delegate the power to revoke a trust by an express statement in the trust or by a
power of attorney
H. Acceptance of Donation
1. Trustee accepts donations in trust for the beneficiaries
2. Beneficiary may refuse the interest in trust, in whole or in part
I. Legitime in Trust

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1. Income attributable to legitime must be distributed as needed for the health, education, support
and maintenance of the forced heir, after considering all other income and support.
2. May be subject to spendthrift provision (i.e. beneficiary cannot alienate or encumber the interest,
trust income and principal are exempt from seizure by beneficiary’s creditors)
a. All you need to establish this is the word “spendthrift.”
b. Court may permit seizure to pay alimony, child support, and damages arising from a
felony crime committed by the beneficiary which results in a conviction or plea of guilty.
3. May be subject to usufruct in favor of settlor’s SS.
4. Duration: cannot exceed the forced heir’s life, unless it’s subject to income interest or usufruct of
SS, or as provided by conditional substitutions
J. Conditional Substitutions
1. The vesting of the interest of a principal beneficiary in a named substitute beneficiary if the
beneficiary dies w/out descendants during the term of the trust
K. Termination
1. If principal beneficiary dies before termination  his interest vests in his “heirs or legatees, as
the case may be.”
2. Trustee may terminate the trust, in whole or in part, earlier than designated if there is an early
termination provision in the trust itself.
a. Court may modify or terminate the trust if continuation would “defeat or substantially
impair” the purposes of the trust.
b. Otherwise, the trust is “indestructible.”
3. Longest terms permitted for various types of trusts:
a. Last to occur of death of last income beneficiary or 20 years from settlor’s death (if
natural person).
b. Last to occur of death of last income beneficiary or 20 years from creation of trust (if
settlor is notnatural person).
c. If settlor is natural person but income beneficiary is not, 20 years from death of settlor.
d. 50 years from creation of trusts if neither settlor nor income beneficiary is a natural
person.

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