Term
| When do you file a concursus? |
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Definition
| 2 or more person have competing claims to money or ppty and want to require them to assert their claims. Funds are deposited with the court. |
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Term
| When to get a writ of attachment? |
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Definition
| obtained when the π claims an interest in ppty and the ∆ is concealing himself to avoid service, disposing of/granting sec int., or to place out of reach of creditors or leaving the state to avoid execution of jdmt (or non-resident) |
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Term
| How much security is required for a writ of attachment? |
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Definition
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Term
| What is a writ of sequestration? |
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Definition
Obtained when the π claims to own, posess, or have a privlege/mortgage/sec int. on the ppty seized and it is with the power of ∆ to conceal/dispose/waste/remove the ppty from the paish.
e.g. Race care driver get loan on engine, bank take Sec int. on engine, could drive the car with engine out of the state --> so bank files writ to get security |
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Term
| How much security is required for a writ of sequestration? |
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Definition
| amt to compensate ∆ for wrongful seizure must be furnished, but no security needed to enforce lessor's privilege |
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Term
| Can attached or sequestered ppty be sold? |
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Definition
| Not before final jdmt, but creditor does get a privlege on it from the time of seizure if he does obtain a final jdmt |
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Term
| When can you get an injuction? |
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Definition
When there is irreparable injury/loss/damage that would result
-injuries that one could not be compensated with money damages |
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Term
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Definition
| May be granted without notice and expires by its term, not to exceed 10 days, can be extended for good cause shown |
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Term
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Definition
Needs verified peition + atty certification
Atty must make efforts to notify the other pary |
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Term
| Requirements of a preliminary hearing? |
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Definition
notice, hearing and trial on its merits
Hearing must be scheduled not less than 2 nor more than 10 days from service |
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Term
| What are the requirements for a petitory action |
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Definition
π not in possession
∆ in possession or asserting ownership |
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Term
| π's burden for a petitory action |
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Definition
If ∆ has poss --> π must prove that he acquired ownerhsip from preivous owners or by AP. π must prove good time "against the world"
If ∆ not in poss --> π must prove better title than ∆ |
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Term
| π's burden of possessory action |
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Definition
π has powss
quiet, uninterrupted possession for more than 1 yr
disturbance of law and fact
action begun 1 yr from disturbance. |
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Term
| Can you bring both a petirory and possessory action? |
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Definition
No, cannot be cumulated.
If ∆ asserts ownership its converted to a petitory action |
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Term
| When is notice of pendency of action? |
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Definition
This is a special type of notice of lis pendens applicable to actions pending in a LA court, state, or fed affecting title to, or asserting a mortgage or privlege on immovable ppty
Gives notice to TPs of a pending acton |
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Term
| Procedure for notice of pendency of action? |
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Definition
1. Written notice signed by the party ro counsel filing the notice with names or persons to be affected, court info and object of demand
Notice filed with recorder of mortgage, notice expire after 10 years but may be re inscribed by refiling the notice. |
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Term
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Definition
File petition praying testament be probated & executed
attach affidavit of death, domicile, and heirship
Present the will & prove by affidavit (if olographic) |
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Term
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Definition
| public inventory of succession ppty taken by a court-appointed notary in the presence of two witnesses |
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Term
| How is a testament challenged and who has the burden? |
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Definition
| If the probate is challenged, a contradictory hearing is held and the burden of proving the authenticity lies on the proponent of the will. |
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Term
| Are videotape testaments allowed? |
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Definition
Yes, they are admissible as evidence of the following
1. Proper execution of the testament
2. testator's intention
3. testator's mental state or capacity
4. testament's authenticity
or by matter the ct deems relevant to provate
the tesator's sworn oath must be recorded on the video tape |
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Term
| Are videotape testaments allowed? |
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Definition
Yes, they are admissible as evidence of the following
1. Proper execution of the testament
2. testator's intention
3. testator's mental state or capacity
4. testament's authenticity
or by matter the ct deems relevant to provate
the tesator's sworn oath must be recorded on the video tape |
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Term
| Does LA recognize out of state testaments? |
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Definition
| yes, if it meets the formalities of the foreign state to be considered valid, then it will be recognized in LA. |
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Term
| What is the procedure for an intestate succession? |
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Definition
File a verified petition
Affidavit of death, domicile and heirship
Inventory of assets
Judgment of possession (ex parte)
If there is a Surviving spouse, they must be joined. |
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Term
| How long does a creditor have to file a claim? |
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Definition
3 months from the date of the jdmt of possess in which to file a claim and
the heirs must then post a bond to cover the claim or the judgment will be dissolved. |
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Term
| What are the requirements for a descriptive list of assets |
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Definition
sworn and described
location
fair market value |
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Term
| What is the procedure for a testate succession probate? |
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Definition
ex parte peition for possession by legatees if competent, or legal reps and no creditor has demanded adminstration
inventory prepared
executor joins in petition |
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Term
| What is the procedure for a testate succession probate? |
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Definition
ex parte peition for possession by legatees if competent, or legal reps and no creditor has demanded adminstration
inventory prepared
executor joins in petition |
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Term
| Can the testator name the executor? |
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Definition
Yes, exectuor is appointed in the will unless disqualified
if none name in the will, or the one name is disqualified, the ct can appoint one. |
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Term
| What are the court preferences for appointing an executor? |
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Definition
the best qualified amont the sur spouse, competent heirs or legatees, or the legal reps of any imcompetent
nominees of foregoing class?
the best qualified creditor of the deceased/estate/owner of immov |
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Term
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Definition
1. Fiduciary - collect/preserve/manage succession ppty
2. Compensation - 2.5% of the value of the succession or more, unless there is an agreement
3. Inventory
4. Power over ppty during admin
5. Tableau of distribution - list of charges and debts proposed to be paid
6. Files final acct |
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Term
| When can heir/surviving spouse/legatees get an interim allowance? |
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Definition
If the estate is solvent
Would be entitled to reas periodic allowance for maintenance, its necessary and they will eventually take
Files contradictory mtn against suc. rep.
Notice of filing must be published once and any opposition filed within 10 days |
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Term
| How does a creditor enforce a claim against a succession? |
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Definition
| A creditor may suspend rx against his claim for up to 10 yrs by delivering personally or by cert/reg mail a formal written proof of claim to the suc. rep. or filing in the suc. proceedings |
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Term
| When can a creditor sue a succession? |
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Definition
When the claim is rejected by a suc rep.
Failure to act within 30 days is a rejection. |
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Term
| When is a succession a "small succession?" |
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Definition
When the estate is valued at less than $75 K and
there is no immov ppty and
the sole heirs are sur. spouse/kids/parents/siblings
*must be domiciled in LA and intestate |
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Term
| What is procedurally required for a small succession? |
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Definition
Major heir or sur. spouse executes and affidavit settign forth
date of death
intestacy
marital status
signed by heirs/someone with knowledge |
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Term
| What are the two types of partition? |
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Definition
In kind - when divisible ($)
Lication - when indivisible - ppty |
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Term
| Where is venue for divorce? |
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Definition
Parish where either party is domiciled or
parish of last matrimonial domicile
cannot be waived |
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