Louisiana Notary

A Civil Law Tradition

Civil Law Basics

Trusts – Effective time of creation of a trust

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Trusts – Effective time of creation of a trust

§1821. When testamentary trust created. A testamentary trust is created at the moment of the settlor’s death.

§1822. W’hen inter vivos trust created. An inter vivos trust is created upon execution of the trust instrument.

§1785. Manner in which trustee chosen. An original trustee, an alternate trustee, or a successor trustee may be designated in the trust instrument or chosen by the use of a method provided in the trust instrument, but neither failure of the trust instrument to so provide nor disqualification or removal of the trustee for any reason, incompetence or unwillingness to act of the person so designated or chosen shall invalidate the trust. In such a case, the proper court shall appoint one or more trustees.

§1823. Retroactive nature of trustee’s acceptance. A trustee’s acceptance is retroactive to the date of creation of the trust.

Trusts – Testamentary trust

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Trusts – Testamentary trust

§1751. Form of testamentary trust. A testamentary trust may be created only in one of the forms prescribed by the laws regulating donations mortis causa.

§1755. Acceptance by trustee. The trustee may accept the trust in the trust instrument or in a separate instrument.

§1824. Consequence of trustee’s failure to accept. If the trustee was not a party to the trust instrument, he must accept the trust in writing within a reasonable time after its creation, or the proper court shall appoint a trustee.

§1788. Resignation of trustee. A trustee may resign at any time by giving written notice of resignation to each of the beneficiaries or by mailing written notice to each at his last known address. The trust instrument may provide another method of resignation and notice.

Trusts – Inter vivos trust

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Trusts – Inter vivos trust

§1752. Form of inter vivos trust. An inter vivos trust may be created only by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the affidavit of one of the attesting witnesses.

Trusts – General Information

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Trusts – General Information

§1731. Trust defined. A trust, as the term is used in this Code, 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.

§1781. Trustee defined. A trustee is a person to whom title to the trust property is transferred to be administered by him as a fiduciary.

§1801. Beneficiary defined. A beneficiary is a person for whose benefit the trust is created and may be a natural person, corporation, partnership, or other legal entity having the capacity to receive property. A trustee of a trust, in his capacity of trustee, can be the beneficiary of another trust. Neither the.heir, legatee, or assignee of a designated beneficiary, nor a beneficiary by reason of a substitution under Sub part B of Part III of this Chapter, is considered a beneficiary for the purpose of fixing the maximum allowable term of the trust.

Succession and Testament – Will treatment

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Succession and Testament – Will treatment

R.S. 9:2446. Will information registration. The secretary of state shall establish a registry in which a testator, or his attorney, if authorized by the testator to do so, may register information regarding the execution of the testator’s will. Such information shall be kept in strictest confidence until the death of the testator and then it shall be made available to any person who presents a death certificate, or affidavit of death and heirship, or other satisfactory evidence of the death of the testator. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the name, social security or other individual identifying number established by law, address, date, place of birth of the testator, and the intended place of deposit or safekeeping of the instrument pending the death of the testator or the name and address of the attorney or other person having information regarding the place of deposit or safekeeping.

Succession and Testament – Codicils

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Succession and Testament – Codicils

CC art. 1608. Revocation of a legacy or other testamentary provision. Revocation of a legacy or other testamentary provision occurs when the testator:

(1) So declares in one of the forms prescribed for testaments.

(2) Makes a subsequent incompatible testamentary disposition or provision.

(3) Makes a subsequent inter vivos disposition of the thing that is the object of the legacy and does not reacquire it.

(4) Clearly revokes the provision or legacy by a signed writing on the testament itself.

(5) Is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.

CC art. 1610. Other modifications. Any other modification of a testament must be in one of the forms prescribed for testaments.

Succession and Testament – Modify an inter vivos trust

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Succession and Testament – Modify an inter vivos trust

R.S. 9:2051. Form. A. A modification, division, termination, or revocation of a trust shall be by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the person who makes the modification, division, or termination or by the affidavit of one of the attesting witnesses. The modification, division, termination, or revocation is not effective as to a trustee until a copy of the authentic act or a copy of the acknowledged act is received· by him.

B. A modification, division, termination, or revocation of a trust may also be by testament. Such a modification, division, termination, or revocation is not effective as to a trustee until the trustee receives a copy of the testament and of the order probating it or ordering it filed and executed.

Succession and Testament – Prohibit (within limits) or place conditions on the partition of property

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Succession and Testament – Prohibit (within limits) or place conditions on the partition of property

Art. 1300. Limited or conditional prohibition against partition by donor But a donor or testator can order that the effects given or bequeathed by him, be not divided for a certain time, or until the happening of a certain condition. But if the time fixed exceed five years, or if the condition do not.happen within that term, from the day of the donation or of the opening of the succession, the judge, at the expiration of this term of five years, may order the partition, if it is proved to him that the coheirs cannot agree among themselves, or differ as to the administration of the common effects.

Art. 1301. Testator’s right to prohibit partition during minority of heirs If the father or other ascendant orders by his will that no partition shall be made among his minor children or minor grandchildren inheriting from him, during the time of their minority, this prohibition must be observed, until one of the children or grandchildren comes of age, and demands the partition.

Succession and Testament – Partition property

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Succession and Testament – Partition property

Art. 1725. Method of making partition. These partitions may be made by act inter vivas or by testament. If a testator has designated the quantum or value of his estate which he bequeaths to a legatee either by formula or by specific sum, he may expressly delegate to his executor the authority to select assets to satisfy the quantum or value.

Art. 1727. Testamentary partitions, formalities. Those made by testament must be made in the forms prescribed for acts of that kind, and are subject to the same rules.

Art. 1729. Necessity for partition to include all descendants. If the partition, whether inter vivas or by testament, be not made amongst all the children living at the time of the decease and the descendants of those predeceased, the partition shall be null and void for the whole; the child or descendant who had no part in it, may require a new partition in legal form.

Succession and Testament – Appoint tutor of surviving minor children

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Succession and Testament – Appoint tutor of surviving minor children

Art. 246. Occasion for tutorship. The minor not emancipated is placed under the authority of a tutor after the dissolution of the marriage of his father and mother or the separation from bed and board of either one of them from the other.

Art. 250. Persons entitled to tutorship. Upon the death of either parent, the tutorship of minor children belongs of right to the other. Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted; however, if the parents are awarded joint custody of a minor child, then the co-tutorship of the minor child shall belong to both parents, with equal authority, privileges, and responsibilities, unless modified by order of the court or by an agreement of the parents, approved by the court awarding joint custody. In the event of the death of a parent to whom joint custody had been awarded, the tutorship of the minor children of the deceased belongs of right to the surviving parent. All those case are called tutorship by nature.

Art. 257. Surviving parent’s right of appointment. The right of appointing a tutor, whether a relation or a stranger, belongs exclusively i:o the father or mother dying last. The right of appointing a tutor, whether a relation or a stranger, also belongs to a parent who has been named the curator for the other living spouse, when that other living spouse has been interdicted, subject only to the right of the interdicted parent to claim the tutorship should his incapacity be removed by a judgment of a court of competent jurisdiction. This is called tutorship by will, because generally it is given by testament; but it may likewise be given by any declaration of the surviving father or mother, or the parent who is the curator of the other spouse, executed before a notary and two witnesses.