Louisiana Notary

A Civil Law Tradition

Louisiana Notary

Succession by Affidavit – Procedure for succession by affidavit

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Succession by Affidavit – Procedure for succession by affidavit

C.C.P. Art. 3432. Affidavit for small succession; contents. A. When it is not necessary under the provisions of Article 3431 to open judicially a small succession, at least two persons, including the surviving spouse, if any, and one or more competent major heirs of the deceased, may execute one or more multiple originals of an affidavit, duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed, setting forth:

(1) The date of death of the deceased, and his domicile at the time thereof;

(2) The fact that the deceased died intestate;

(3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse’s address, domicile, and location of last residence;

(4) The names and last last known addresses of the heirs of the deceased, their relationship to the deceased, and the statement that an heir not signing the affidavit (a) cannot be located after the exercise of reasonable diligence, or (b) was given ten days notice by U.S. mail of the affiants’ intent to execute an affidavit for small succession and did not object;

(5) A description of the property left by the deceased, including whether the property is community or separate, and which in the case of immovable property must be sufficient to identify the property for purposes of transfer;

(6) A showing of the value of each item of property, and the aggregate value of all such property, at the time of the death of the deceased;

(7) A statement describing the respective interests in the property which each heir has inherited and whether a legal usufruct of the surviving spouse attaches to the property;

(8) An affirmation that, by signing the affidavit, the affiant, if an heir, has accepted the succession of the deceased; and.

(9) An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct and complete to the best of their knowledge, information, and belief.

(10) Repealed by Acts 2012, No. 618, §2, eff. June 7, 2012.

B. If the deceased had no surviving spouse, the affidavit must be signed by at least two heirs. If the deceased had no surviving spouse and only one heir, the affidavit must also be signed by a second person who has actual knowledge of the matters stated therein.

C. In addition to the powers of a natural tutor otherwise provided by law, a natural tutor may also.execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061. C.C.P. Art. 3432.1. Affidavit for small succession for a person domiciled outside of Louisiana; contents. A. “When it is not necessary under the provisions of Article 3431 to open judicially a small succession, at least two persons, including the surviving spouse, if any, and one or more.competent legatees of the deceased, may execute one or more multiple originals of an affidavit, duly sworn before any officer or person authorized to administer oaths in the place where the affidavit is executed, setting forth all of the

(1) The date of death of the deceased, and his domicile at the time thereof

(2) The fact that the deceased died testate.

(3) The marital status of the deceased, the location of the last residence of the deceased, and the name of the surviving spouse, if any, and the surviving spouse’s address, domicile, and location of last residence, together with the names and last known addresses of the legal heirs of the deceased, and identifying those of the legal heirs who are also forced heirs of the deceased.

(4) The names and last known addresses of the legatees of the deceased, and the statement that a legatee not signing the affidavit was given ten days notice by U.S. mail of the affiants’ intent to execute an affidavit for small succession and did not object.

(5) A description of the property left by the deceased, including whether the property is community or separate, and which, in the case of immovable property, must be sufficient to identify the property for purposes of transfer.

(6) A showing of the value of each item of property subject to the jurisdiction of the courts of Louisiana, and the aggregate value of all such property, at the time of the death of the deceased.

(7) A statement describing the respective interests in the property which each legatee has inherited and whether a legal usufruct of the surviving spouse attaches to the property.

(8) An attachment consisting of certified copies of the testament and the probate order of another state.

(9) An affirmation that, by signing the affidavit, the affiant, if a legatee, has accepted the legacy of the deceased.

(10) An affirmation that, by signing the affidavit, the affiants swear under penalty of perjury that the information contained in the affidavit is true, correct, and complete to the best of their knowledge, information, and belief.

B. If the deceased had no surviving spouse, the affidavit must be signed by at least two persons who have actual knowledge of the matters stated therein.

C. In addition to the powers of a natural tutor otherwise provided by law, a natural tutor may also execute the affidavit on behalf of a minor child without the necessity of filing a petition pursuant to Article 4061.

Art. 3434. Endorsed copy of affidavit authority for delivery of property. A. A multiple original of the affidavit authorized by Article 3432, shall be full and sufficient authority for the payment or delivery of any money or property of the deceased described in the affidavit to the heirs of the deceased and the surviving spouse in community; if any, in the percentages listed therein, by any bank, financial institution, trust company, warehouseman, or other depositary, or by any person having such property in his possession or under his control. Similarly, a multiple original of an affidavit satisfying the requirements of this Article shall be full and sufficient authority for the transfer to the heirs of the deceased, and surviving spouse in community, if any, or to their assigns, of any stock or registered bonds in the name of the deceased and described in the affidavit, by any domestic or foreign corporation.

B. The receipt of the persons named in the affidavit as heirs of the deceased, or surviving spouse in community thereof, constitutes a full release and discharge for the payment of money or delivery of property made under the provisions of this Article. Any creditor, heir, succession representative, or other person whatsoever shall have no right or cause of action against the person paying the money, or delivering the property; or transferring the stock or bonds, under the provisions of this Article, on account of such payment, delivery, or transfer.

C. (1) A multiple original of the affidavit, to which has been attached a certified copy of the deceased’s death certificate, shall be recorded in the conveyance records in the office of the clerk of court in the parish where any small succession immovable property described therein is situated, after at least ninety days have elapsed from the date of the deceased’s death.

(2) An affidavit so recorded, or a certified copy thereof, shall be admissible as evidence in any action involving small succession immovable property to which it relates or is affected by the instrument, and shall be prima fade evidence of the facts stated therein, including the relationship to the deceased of the parties recognized as heir, surviving spouse in community or usufructuary as the case may be, and of their rights in the small succession immovable property of the deceased.

(3) An action by a person, who claims to be a successor of a deceased person but who has not been recognized as such in an affidavit authorized by Article 3432, to assert an interest in small succession immovable property formerly owned by the deceased, against a third person who has acquired an interest in the small succession immovable property, or against his successors by onerous title, is prescribed in two years from the date of the recording of the affidavit in accordance with this Paragraph.

Succession by Affidavit – Small succession

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Succession by Affidavit – Small succession

C.C.P. Art. 3421. Small successions defined. A small succession, within the meaning of this Title, is the succession or the ancillary succession of a person who at any time has died and the decedent’s property in Louisiana has a gross value of one hundred twenty-five thousand dollars or less valued as of the date of death or, if the date of death occurred at least twenty years prior to the date of filing of a small succession affidavit as authorized in this Title, leaving property in Louisiana of any value.

C.C.P. Art. 3431. Small successions; judicial opening unnecessary. A. It shall not be necessary to open judicially the small succession of a person domiciled in Louisiana who died intestate, or domiciled outside of Louisiana who died intestate or whose testament has been probated by court order of another state, and whose sole heirs are the following:

(1) His descendants.

(2) His ascendants.

(3) His brothers or sisters, or descendants thereof.

(4) His surviving spouse.

(5) His legatees under a testament probated by court order of another state.

Public Inventory – Reporting to the court

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Public Inventory – Reporting to the court

C.C.P. Art. 3134. Return of proces verbal of inventory. The notary who took the inventory, or the party at whose instance it was taken, shall make duplicate copies of the proces verbal, the original proces verbal shall be returned into the court which ordered it taken, immediately upon its completion and signing. The duplicate copy shall be certified and filed with the collector of revenue. A certified copy of the proces verbal of any inventory taken in Orleans Parish may be returned in the same manner, and with the same effect as the original.

C.C.P. Art; 3135. Proces verbal of inventory prima facie proof traverse. The proces verbal of a public inventory returned into court as provided in Article 3134 shall be accepted as prima fade proof of all matters shown therein, without homologation by the court. An interested person at any time may traverse the proces verbal of a public inventory by contradictory motion served upon the notary and the person at whose instance the inventory was made. If a descriptive list is amended or successfully traversed a copy of the amended or traversed proces verbal shall be filed with the Collector of Revenue.

Public Inventory – The role of the notary

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Public Inventory – The role of the notary

C.C.R Art. 3133. Proces verbal of inventory. The public inventory shall be evidenced by the notary’s proces verbal of the proceedings, subscribed by him, and signed by the appraisers, witnesses, and other persons who have attended. This proces verbal shall contain:

(1) The names, surnames, domiciles, and qualities of the notary taking the inventory, of the witnesses thereto, of the appraisers who have valued the property, and of any other interested persons who have attended;

(2) The dates when and places where the inventory was taken;

(3) A description of the manner in which the inventory was taken;

(4) An adequate description of each item of property.belonging to the estate and found in the parish where the inventory was taken, and the fair market value thereof estimated by the appraisers;

(5) An adequate description of all of the titles, account books, and written evidences of indebtedness due the estate, found during the taking of the inventory, and the amounts of the indebtedness, and the name, surname, and address of each debtor, as shown therein;

(6) An adequate description of any property owned in whole or in part by third persons, or claimed by third persons as having been left on loan, deposit, consignment, or otherwise; and

(7) A recapitulation of the aggregate value of all movable property, the aggregate value of all immovable property, and the total value of all property owned by the estate.

Public Inventory – The public inventory of succession property

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Public Inventory – The public inventory of succession property

C.C.P.Art. 3131. Notary appointed for inventory in each parish. When the court orders the taking of an inventory of the property of the succession, it shall appoint a notary of each parish in which the deceased left property to take the inventory of such property in that parish.

C.C.P. Art. 3132. Public inventory. The public inventory of the property of a deceased person; or of other estates under the administration of the court, shall be taken by a notary appointed by the court, in the presence of at least two competent witnesses, assisted by two competent appraisers appointed and sworn by the notary. The witnesses and appraisers need not be residents of the parish where the inventory is taken. The taking of the inventory may be attended by any person interested in the estate to be administered, or by his attorney; and when timely requested to do so, the notary shall give such person, or his attorney, notice by ordinary mail of the time and place thereof.

Trusts – Limitation on trust terms

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Trusts – Limitation on trust terms

§1831. Limitations upon stipulated term. If the trust instrument stipulates a term and unless an earlier termination is required by the trust instrument, or by the proper court, a trust shall terminate at:

(1) The death of the last surviving income beneficiary or the expiration of twenty years from the death of the settlor last to die, whichever last occurs, if at least one settlor and one income beneficiary are natural persons;

(2) The death of the last surviving income beneficiary or the expiration of twenty years from the creation of the trust, whichever last occurs, if none of the settlors is a natural person but at least one income beneficiary is a natural person;

(3) The expiration of twenty years from the death of the settlor last to die, if at least one settlor is a natural person but none of the income beneficiaries is a natural person;

(4) The expiration of fifty years from the creation of the trust, if none of the settlors and none of the income beneficiaries is a natural person.

Trusts – Trusts for the care and benefit of an animal

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Trusts – Trusts for the care and benefit of an animal

§2263. Trust for the care of an animal. A. A trust may be created to provide for the care of one or more animals that are in being and ascertainable on the date of the creation of the trust.

B. The trust instrument may designate a caregiver for each animal. An animal’s caregiver will have the custody of the animal and be responsible for its care. If no caregiver is designated or if the designated or appointed caregiver is unable or unwilling to serve, the trustee shall appoint or act as the caregiver.

C. The trust instrument may designate a person to enforce the provisions of the trust. If no person is designated or if the designated person is unable or unwilling to serve, the settlor or any of his successors or a caregiver may enforce the trust.

D. Trust property may be used only for the care of each animal and for reasonable compensation and expenses of the trustee and the caregiver.

E. If the proper court determines that the value of the trust substantially exceeds the amount required to care for each animal and for reasonable compensation and expenses of the trustee and the caregiver, the court may terminate the trust as to the excess portion.

F. The trust shall terminate upon the death of the last surviving animal provided for in the trust instrument.

G. The trust instrument may designate a person to receive the property upon partial or complete termination of the trust. In the absence of a designation, the trust property shall be distributed upon termination to the settlor, if living, or to the settlor’s successors.

H. A trust instrument that provides for the care of one or more animals shall be liberally construed to sustain its effectiveness and to fulfill the intent of the settlor.

I. Unless otherwise required by the trust instrument or the proper court, a trustee is not required to post security or provide an accounting.

J. In all matters for which no provision is made in this Section, a trust for the care of an animal shall be governed by the provisions of the Louisiana Trust Code.

Trusts – Providing for disposition of trust property upon refusal by, or death of, a beneficiary

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Trusts – Providing for disposition of trust property upon refusal by, or death of, a beneficiary

§1990. Effect of refusal upon interest refused. A settlor may stipulate the effect of refusal. Unless the trust instrument otherwise provides, the following rules govern:

(1) Refusal of the entire interest in trust causes the trust to fail.

(2) Refusal by the sole income beneficiary causes principal beneficiaries, other than the refusing beneficiary; to become income beneficiaries, to the extent of the interest refused, in amounts proportionate to their interests or, in the absence of other principal beneficiaries, such a refusal operates as a substitution of the settlor or his heirs or legatees as beneficiaries of the refused income interest.

(3) Except as provided in Paragraph(4), refusal of an interest by one of several income beneficiaries inures in favor of the other beneficiaries or their successors in proportion to their interests in the balance of the trust income.

(4) If one or more descendants of a refusing income beneficiary are the beneficiaries of an interest in trust principal, either by designation in the instrument or by reason of Paragraph (5), those descendants become the beneficiaries of the refused interest, in proportion to their interests in trust principal.

(5) A principal beneficiary of a testamentary trust who refuses his interest and to whom R.S. 9:1809 would have applied had he predeceased the settlor shall be treated as having predeceased the settlor.

(6) Unless Paragraph (5) applies, refusal by the sole principal beneficiary operates a substitution of the settlor or his heirs or legatees as beneficiary of the principal, to the extent of the interest refused, without affecting the interest of the income beneficiary.

(7) Unless Paragraph (5) applies, refusal of an interest by one of several principal beneficiaries inures in favor of the other beneficiaries or their successors in proportion to their interests in the balance of the trust principal.

Trusts – Spendthrift trusts

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Trusts – Spendthrift trusts

§2002. Restraint upon alienation. The trust instrument may provide that the interest of a beneficiary shall not be subject to voluntary or involuntary alienation by a beneficiary. A restraint upon voluntary alienation by a beneficiary is valid. But a restraint upon involuntary alienation by a beneficiary is subject to the limitations prescribed by this sub-part.

§2004. Seizure by creditor; general rule. A creditor may seize only:

(1) An interest in income or principal that is subject to voluntary alienation by a beneficiary.

(2) A beneficiary’s interest in income and principal, to the extent that the beneficiary has donated property to the trust, directly or indirectly. A beneficiary will not be deemed to have donated property to a trust merely because he fails to exercise a right of withdrawal from the trust.

§2005. Seizure by creditor; special claims. Notwithstanding any stipulation in the trust instrument to the contrary, the proper court, in summary proceedings to which the trustee, the beneficiary, and the beneficiary’s creditor shall be parties, may permit seizure of any portion of the beneficiary’s interest in trust income and principal in its discretion and as may be just under the circumstances if the claim is based upon a judgment for:

(1) Alimony, or maintenance of a person whom the beneficiary is obligated to support;

(2) Necessary services rendered or necessary supplies furnished to the beneficiary or to a person whom the beneficiary is obligated to support; or

(3) Damages arising from a felony criminal offense committed by the beneficiary which results in a conviction or a plea of guilty.

Trusts – Designation of trustee, successive trustees, and multiple trustees

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Trusts – Designation of trustee, successive trustees, and multiple trustees

§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.

§1782. Number of trustees. There may be one or more trustees of a trust.

§2096. Co-trustees. If there are two or more trustees, each shall participate in the administration of the trust and use reasonable care to prevent a co-trustee from committing a breach of trust and shall compel him to redress a breach of trust.

§2113. Exercise of powers by two trustees. If there are two trustees, the powers conferred upon them shall be exercised only by both of them, unless it is otherwise provided by the trust instrument or by order of the proper court.

§2114. Three or more trustees; exercise of powers. A power vested in three or more trustees may be exercised by a majority of the trustees, unless the trust instrument provides otherwise. A trustee who has not joined in exercising a power shall not be liable to the beneficiaries; or to others for the consequences of that exercise, nor shall a dissenting trustee be liable for the consequences of an act in which he joins at the direction of the majority of trustees, if he expresses his dissent in·writing to his co-trustees at or before the time of the joinder. Nothing in this section shall excuse a co-trustee from liability for inactivity in the administration of the trust nor for failure to attempt to prevent a breach of trust.

§2114.1. Allocation of different powers to different trustees. A trust instrument may confer different powers upon different trustees, in which case each trustee acts independently with respect to those powers conferred upon him. As to powers not conferred upon him, he shall have no duties or liabilities as to the actions or inactions of the other trustees.