Louisiana Notary

A Civil Law Tradition

Civil Law Basics

Succession and Testament – Testator knows how to read, sign his name, and is physically able to do both

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Succession and Testament – Testator knows how to read, sign his name, and is physically able to do both

Art. 1577. Requirements of form. The notarial testament shall be prepared in writing and dated and shall’ be executed in the following manner. If the testator knows how to sign his name and to read, and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___day of ___,___.”

Succession and Testament – Notarial testament

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Succession and Testament – Notarial testament

Art. 1576. Notarial testament. A notarial testament is one that is executed in accordance with the formalities of Articles 1577 through 1580.1.

Art. 1577. Requirements of form. The·notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read, and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ___day of ___,__.”

Succession and Testament – Olographic testament

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Succession and Testament – Olographic testament

Art. 1575. Olographic testament. A. An olographic testament is one entirely written, dated, and signed in the hand-writing of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament as clarified by extrinsic evidence, if necessary.

B. Additions and deletions on the testament may be given effect only if made by the hand of the testator.

Succession and Testament – Testaments

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Succession and Testament – Testaments

Art. 1570. Testaments; form. A disposition mortis causa may be made only in the form of a testament authorized by law.

Art. 1573. Formalities. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.

Art. 1571. Testaments with others or by others prohibited. A testament may not be executed by a mandatary for the testator. Nor may more than one person execute a testament in the same instrument.

Succession and Testament – Types of legacies

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Succession and Testament – Types of legacies

Art. 1585. Universal legacy. A universal legacy is a disposition of all of the estate, or the balance of the estate that remains after particular legacies. A universal legacy may be made jointly for the benefit of more than one legatee without changing its nature.

Art. 1586. General legacy. A general legacy is a disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a fraction or certain proportion of the balance of the estate that remains after particular legacies. In addition, a disposition of property expressly described by the testator as all, or a fraction or a certain proportion of one of the following categories of property, is also a general legacy: separate or community property, movable or immovable property, or corporeal or incorporeal property. This list of categories is exclusive.

Art. 1587. Particular legacy. A legacy that is neither general nor universal is a particular legacy.

Succession and Testament – Who can make a testament?

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Succession and Testament – Who can make a testament?

Art. 1470. Persons capable of giving or receiving. All persons have capacity to make and receive donations inter vivos and mortis causa, except as expressly provided by law.

Art. 1476. Minors; incapacity to make donations, exceptions. A minor under the age of sixteen years does not have capacity to make a donation either inter vivos or morris causa, except in favor of his spouse or children. A minor who has attained the age of sixteen years has capacity to make a donation, but only morris causa. He may make a donation inter vivas in favor of his spouse or children.

Art. 1477. Capacity to donate, mental condition of donor. To have capacity to make a donation inter vivos or morris causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making.

Succession and Testament – Testate succession

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Succession and Testament – Testate succession

Art. 1469. Donation mortis causa, definition. A donation mortis causa is an act to take effect at the death of the donor by which he disposes of the whole or a part of his property. A donation mortis causa is revocable during the lifetime of the donor.

Art. 1573. Formalities. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.

Succession and Testament – Unworthy successors

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Succession and Testament – Unworthy successors

Art. 941. Declaration of unworthiness. A successor shall be declared unworthy if he is convicted of a crime involving the intentional killing, or attempted killing, of the decedent or is judicially determined to have participated in the intentional, unjustified killing, or attempted killing, of the decedent. An action to declare a successor unworthy shall be brought in the succession proceedings of the decedent. An executive pardon or pardon by operation of law does not affect the unworthiness of a successor.

Art. 943. Reconciliation or forgiveness. A successor shall not be declared unworthy if he proves reconciliation with or forgiveness by the decedent.

Art. 945. Effects of declaration of unworthiness. A judicial declaration that a person is unworthy has the following consequences:

(I) The successor is deprived of his right to the succession to which he had been called.

(2) If the successor has possession of any property of the decedent, he must return it, along with all fruits and products he has derived from it. He must also account for an impairment in value caused by his encumbering it or failing to preserve it as a prudent administrator.

(3) If the successor no longer has possession because of a transfer or other loss of possession due to his fault, he must account for the value of the property at the time of the transfer or other loss of possession, along with all fruits and products he has derived from it. He must also account for any impairment in value caused by his encumbering the property or failing to preserve it as a prudent administrator before he lost possession.

(4) If the successor has alienated, encumbered, or leased the property by onerous title, and there is no fraud on the part of the other party, the validity of the transaction is not affected by the declaration of unworthiness. But if he has donated the property and it remains in the hands of the donee or the donee’s successors by gratuitous title, the donation may be annulled.

(5) The successor shall not serve as an executor, trustee, attorney or other fiduciary pursuant to a designation as such in the testament or any codicils thereto. Neither shall he serve as administrator, attorney, or other fiduciary in an intestate succession.

Art. 946. Devolution of succession rights of successor declared unworthy. A. If the decedent died intestate, when a successor is declared unworthy his succession rights devolve as if he had predeceased the decedent; but if the decedent died testate, then the succession rights devolve in accordance with the provisions for testamentary accretion as if the unworthy successor had predeceased the testator.

B. “When the succession rights devolve upon a child of the successor who is declared unworthy, the unworthy successor and the other parent of the child cannot claim a legal usufruct upon the property inherited by their child.

Succession and Testament – Accretion

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Succession and Testament – Accretion

Art. 946. Devolution of succession rights of successor declared unworthy. A. If the decedent died intestate, when a successor is declared unworthy his succession rights devolve as if he had predeceased the decedent; but if die decedent died testate, then the succession rights devolve in accordance with the provisions for testamentary accretion as if the unworthy successor had predeceased the testator.

B. When the succession rights devolve upon a child of the successor who is declared unworthy, the unworthy successor and the other parent of the child cannot claim a legal usufruct upon the property inherited by their child.

Art. 964. Accretion upon renunciation in intestate successions. The rights of an intestate successor who renounces accrete to those persons who would have succeeded to them if the successor had predeceased the decedent.

Art. 965. Accretion upon renunciation in testate successions. In the absence of a governing testamentary disposition, the rights of a testate successor who renounces accrete to those persons who would have succeeded to them if the legatee had predeceased the decedent.

Art. 1590. Testamentary accretion. Testamentary accretion takes place when a legacy lapses. Accretion takes place according to the testament, or, in the absence of a governing testamentary provision, according to the following Articles.

Art. 1591. Accretion of particular and general legacies. When a particular or a general legacy lapses, accretion takes place in favor of the successor who, under the testament, would have received the thing if the legacy had not been made.

Art. 1592. Accretion among joint legatees. When a legacy to a joint legatee lapses, accretion takes place ratably in favor of the other joint legatees, except as provided in the following Article.

Art. 1593. Exception to rule of testamentary accretion. If a legatee, joint or otherwise, is a child or sibling of the testator, or a descendant of a child or sibling of the testator, then to the extent that the legatee’s interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent’s death. The provisions of this Article shall not apply to a legacy that is declared invalid or is declared null for fraud, duress, or undue influence.

Art. 1595. Accretion to universal legatee. All legacies that lapse, and are not disposed of under the preceding Articles, accrete ratably to the universal legatees.When a general legacy is phrased as a residue or balance’ of the estate without specifying that the residue or balance is the remaining fraction or a certain portion of the estate after the other general legacies, even though that is its effect, it shall be treated as a universal legacy for purposes of accretion under this Article.

Art. 1596. Accretion to intestate successors. Any portion of the estate not disposed of under the foregoing rules devolve by intestacy.