Forced Heir Share

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    • #3323
      macc
      Participant

      Hello again and thank you for reading.

      My husband’s late wife left him usufruct of her share of the estate. In it he has complete legal right to do with as he please so long as the forced heir’s share isn’t squandered away. He sold the home and bought another one with the proceeds as his lawyer advised. (Husband did open succession following the death.)

      The forced heir is 30 yrs old (currently), and lives out of the country. He was under 24 yrs of age at the time of his mum’s death.

      Exactly what is the forced heir’s share of his late mother’s estate? I heard it was 1/2, then I heard it was 1/4. I was also told the late wife’s share of the community is 50% in Louisiana, (at the time of her death anyway).

      What is/was her husband’s share of her estate? If he was to give the forced heir his share of his mum’s estate, would that be the value of the estate at the time of her death?

      Louisiana is the state in which this transpired.

    • #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.

    • #3325
      macc
      Participant

      Thank you Lex.

      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.

      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.

      Although I am helping financially to the household/property, I requested I not be on the new property deed to avoid any situation if he predeceases me. I have total usufruct should he predecease me and I’m not concerned about what happens to the property once I’m deceased.

      I do have another question – should he predecease me, then when I pass, will my heirs be legally able to come into this house and collect my belongings? Is there a time allowed by law for my heirs, following my death, to come onto this property and collect my belongings? Perhaps the question should be DO my heirs have a legal right to do so?

      Sorry this is so long and do very much appreciate all the replies – priceless! Thank you!

    • #3326
      macc
      Participant

      PS, the forced heir is not listed as co-owner on the new home my husband purchased. How does this work considering he was on the tax record of the sold property??? This is getting me quite confused! Ha!

    • #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.

    • #3331
      macc
      Participant

      Thank you for all the information. I truly appreciate it.

      I think I may need to make plans in the event my husband, (forced heir’s father) predeceases me. It sounds like I may not have usufruct of the property (home), should the forced heir decide to object, contest(?) the sale of the family home once his dad expires.

      The late wife’s attorney told my husband he could sell it providing he invested in another house which he did.

      I think forced heirship is awful! Heirs have been supported by parents – why should they be entitled to anything they certainly didn’t earn once they’re adults?! I can understand providing for a disabled child but healthy young 24 yr olds? Naw…no way!

      Again thank you kindly for all the info.

    • #3332
      Bassmaster
      Participant

      Forced heirship is a nightmare for the people of Louisiana on so many levels.

      For example, did you know that Louisiana is the only state that does not allow spouses to own their home jointly with rights of survivorship? In other states a surviving spouse can receive 100% ownership of the home without a succession. In Louisiana a jointly owned home MUST go through a time-consuming and expensive succession.

      And the reason given by legislators as to why: forced heirship. It is ridiculous.

    • #3349
      EJC-LA
      Participant

      For example, did you know that Louisiana is the only state that does not allow spouses to own their home jointly with rights of survivorship? In other states a surviving spouse can receive 100% ownership of the home without a succession. In Louisiana a jointly owned home MUST go through a time-consuming and expensive succession.

      There’s a very simple reason for this: “right of survivorship” is a common law concept (often found on other states in the form “with common law right of survivorship”) and Louisiana’s law is civil law. Therefore, “survivorship” wouldn’t be part of Louisiana’s traditions.

    • #3354
      Lex
      Keymaster

      But should “tradition” outweigh utility and common sense?

      Why should tradition require that a surviving spouse have to go through a succession to get the title to their family home vested in him/her when husband or wife dies?

      Don’t get me wrong. As a lawyer over the years I have made plenty of money as the result of traditions like this. And yet, I still apologize to the victim of tradition when I tell the widow who has lived in the family home for years after her husband dies that I have to do a succession because she can’t sell what she thought was her home. “Sorry, it is only half your home until we spend some time and a good bit of money going through the forced heir minefield and the rest of the nonsense involved in a Louisiana succession.”

      All it would take is a bit of legislation to fix this problem. I have talked to a few legislators about this and frankly, since the legislators I talked to are also lawyers, I think the main resistance is more the money aspect, not tradition.

      Sorry. After very recent national events, I’m a bit down on the system and how absolutely corrupt it is -from the top on down.

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