Lex

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  • in reply to: Forced Heir Share #3327
    Lex
    Keymaster

    The deceased parent was married at the time of death to the forced heir’s father, (my husband). There are no other children so if I understand you correctly, the heir would receive 25% of his mother’s 50% of her community estate.

    To be clear, a child would inherit 100% unless there was a will leaving the child out. That is where forced heirship could come in.

    The widower had a mortgage totaling 90k. He sold the property, (267k), paid off the mortgage, the realtor, etc., and came out with only enough to purchase a small property valued less than the community home was valued at when the mother passed. Now he has no mortgage and owns the less valuable property outright. The heir, (naked owner) wasn’t required to sign anything for him to sell the property and did not sign on to the new property.

    This is in an area that contains too many variables to be able to comment. A usufruct may or may not follow the property through various transactions. In theory it should. But too much can happen -like values going down. The sales should not have taken place without the approval of the usufructuary. That is assuming everything was recorded properly to protect his/her rights. That is often not the case.

    This is getting me quite confused! Ha!

    Well, it is confusing. Unfortunately I cannot offer an opinion since so much is at play factually.

    in reply to: Forced Heir Share #3324
    Lex
    Keymaster

    The share that a forced heir receives is called the forced portion and is 25% of the deceased parent’s estate. If there are more than one forced heir, then the forced portion is 50%. So, two forced heirs would get 25% each and more than two forced heirs would have to share 50%. The forced portion can never be more than 50% no matter how many forced heirs there are.

    If the deceased parent was married and under Louisiana’s community regime, then the forced portion only applies to what is actually in the deceased parent’s estate -which would be the community interest only. So, assuming the estate is community and assuming one forced heir who is entitled to 25%, then in effect the forced heir is entitled to 12.5% of what the parents own -but that is not really the proper way to look at things. The forced portion only applies to the estate of the deceased parent.

    The value of a forced portion can change depending on several factors. So, for starters, you would value assets as of the time of death. That value may go up or down by the time the forced heir is actually paid. For example, if a house is valued at $100,000 at date of death and if the forced portion is $12,500 (25% forced portion applied to one-half the estate), and supposing further that the forced heir is not entitled to immediate possession because of a usufruct, then the value may be higher or lower at time of payment. So, if the house doubled in value, then the forced heir would be entitled to $25,000.

    Keep in mind that a forced heir is a co-owner ( a “naked owner”) as of the moment of death of the parent. As any co-owner, at time of liquidation or payment the co-owner would be entitled to his or her share of the present value of the asset.

    in reply to: Tree on property line #3322
    Lex
    Keymaster

    Leaves. Yeah, that’s what trees do.

    Start with talking to them and tell them the tree is half yours and you do not want it cut.

    If that doesn’t work, then tell them you talked to a lawyer about it, that they have no legal right to cut the tree down, that you would rather not go down that road, but will if you have to.

    If that doesn’t work, then get a lawyer to send a letter to them telling them they will be in court if they attempt to cut the tree. Be prepared to follow through with getting a restraining order -although I doubt if it would go that far.

    in reply to: lease not filed with parish #3091
    Lex
    Keymaster

    Yes, exactly. A lease does not have to be recorded in order to enforce it’s terms.

    in reply to: Tree on property line #3090
    Lex
    Keymaster

    Why do they want to cut the tree down? If the tree is diseased or a danger in some way, or maybe destroying their driveway, then they may have grounds to remove the tree since they are “co-owners”.

    Absent a good reason for cutting it down, it sounds like it would be necessary for you to go to court and get an injunction or the tree could be gone before there is time to react. If you get a temporary order (injunction), then there would be a hearing within a few weeks to determine whether the tree should go or not. That would be up to a judge.

    in reply to: Giving present to your lawyer #3084
    Lex
    Keymaster

    I don’t know. Over the years we have received flowers, candy, wine, and so on. I think these are just expressions of appreciation and are harmless.

    in reply to: Contractor paid, but he didn't pay subcontractors. #3076
    Lex
    Keymaster

    From my experience with construction liens, there is not much you can do to prevent a lien being filed. However, if the lien is improper, you can sue to have the lien removed. From what you describe, that should be fairly easy to do.

    When we have filed suit to remove a lien, it usually resulted in the person who filed the lien suddenly getting more cooperative.

    Subs that file liens are a bit more of a problem. Usually those liens will sit there until the problem with the contractor is resolved.

    in reply to: Contractor paid, but he didn't pay subcontractors. #3074
    Lex
    Keymaster

    First things first. What reason did the contractor give you for not wanting to provide the final contract?

    in reply to: Filing joint successions #3063
    Lex
    Keymaster

    I have also seen this done a few times. I don’t know of any statutory prohibition, but I have to say that filing a joint succession is just bad practice.

    For one thing, the clerk of court is just going to have to split the filing into two cases to be able to index things properly. If the idea is to save court costs, I doubt if it really helps that much.

    Another problem could be with the title to property. I can easily see a title examiner getting a bit nervous when it comes to a pending sale. Normally you have a succession for the first to die of a married couple that lists one-half the value of property since it is community. Assuming there is a will that leaves everything to the survivor, then when the second spouse dies there is another succession listing everything at full value. I doubt if any of this could be made clear if you tried to put it all together in one filing.

    in reply to: Glitches #3062
    Lex
    Keymaster

    Cloudflare is basically a service that speeds up a site by storing some info and serving it up from their server.

    But that wasn’t the problem. Something had redirected links to a black hole somewhere. It is fixed, but we don’t know what caused the problem exactly.

    in reply to: garnishment question #3056
    Lex
    Keymaster

    Yes, they should be able to discuss this with you.

    in reply to: Zoning Ordinance enforcement #3036
    Lex
    Keymaster

    There must be more to this. I am no expert on zoning law, but you should be able to serve an owner wherever and however he can be found. That is the way it is in every other aspect of the law.

    I think you should have a lawyer with familiarity in this area look this over for you.

    in reply to: builder problem! #3035
    Lex
    Keymaster

    What you describe here could go in any direction -up, down or sideways. That is the way it is when a contract is not clear.

    However, you do have one thing operating in your favor. If there is an ambiguity in a contract, then generally the outcome goes against the party writing the contract. Since, I assume, it was your contractor that created the contract, then in a toss-up you should have the advantage.

    in reply to: Want Dad's medical records #3023
    Lex
    Keymaster

    Getting medical records and the testimony of attending physicians is generally done through litigation and the subpoena powers of the courts.

    In this case, the logical forum would be to use the succession process. Any interested person can open a succession. If a succession has been opened, then any interested party can attack a will that has been probated.

    Yes, you should have a lawyer for this.

    in reply to: Zoning Variance Appeal #3016
    Lex
    Keymaster

    Variances from zoning requirements are generally firmly within the sound discretion of whatever parish or city authority is in charge of zoning. However, one frequent appeal route is that variances were granted for others in a similar fact situation or that variances “in fact” have been tolerated over a period of time without any objections.

    But it would generally just be guesswork as to what grounds were used here.

Viewing 15 posts - 166 through 180 (of 195 total)