July 15, 2019 at 7:47 am #4173
My husbands dad died in the 70’s he was a minor with 2 brothers at the time all under 23 years of age. Succession was filed and the Estate was intestate. The mother received 1/2 of all community property with usufruct. The boys received their forced portion their dads. The mother remained in the home to this day and never remarried. She also has never settled with her boys on their portion. The checking account she operates out of is one of the same that was in the original succession. She has granted POD to one son and DIL and POA. She has also Willed her Estate to them. Meanwhile signing over all assets and giving belongings to them. The brother or DIL has also been made Executor of her estate. My question is is the checking account still community property even though a POD is assigned?
If they are executors is just covers her portion? Not the other portion? Do they need the other brothers signatures to sell house?
July 15, 2019 at 2:47 pm #4176
In the seventies all children were forced heirs. In this case, without a will, the mother would have her half of the community and the children would inherit all of Dad’s part of the community. Mom would inherit a legal usufruct over the portion belonging to the forced heirs.
So, the children would be considered naked owners of the one-half belonging to the father -subject to a usufruct to Mom, that would terminate upon death or remarriage. At that time, the naked owners would own outright what they had all these years as naked owners.
The real-world problem in these cases is that it will be hard to figure out 1) what was owned by father that Mom has a usufruct over and 2) to what extent any changes over the years belongs to her estate or his estate at the end of the day. Much of this would be determined by her will -but she cannot will away that which she does not own. In other words, her usufruct terminates when she dies and that property goes equally to children. Her will can only apply to what she had back when Dad died.
You need to see a lawyer about this because there is alway the aspect of someone with a usufruct mis-using the assets that belong to the naked owners. It is possible to terminate a usufruct on that basis and a lawyer would have to advise as to where that is a good avenue. If that is done, the person with the usufruct would have to account to the naked owners for how “their” part of the estate has been handled. It may not be worth the legal fees and aggravation. The only thing that is certain here is that trying to go back over thirty or forty years of transactions will be difficult.
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