EJC-LA

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  • in reply to: Inheritance in divorce #4234
    EJC-LA
    Participant

    Louisiana Civil Code art. 2341. Separate property —

    The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually

    Louisiana Civil Code art. 2341.1. Acquisition of undivided interests; separate and community property —

    A. A spouse’s undivided interest in property otherwise classified as separate property under Article 2341 remains his separate property regardless of the acquisition of other undivided interests in the property during the existence of the legal regime, the source of improvements thereto, or by whom the property was managed, used, or enjoyed.

    —–

    All that said, there are instances when the fruits of separate property are community assets; and I can think of an instance in which separate property MIGHT be converted to community property, but that would need to be discussed with an attorney.

    ——-

    I am not an attorney, and no answer is to be considered legal advice.

    in reply to: Right of way dispute #4228
    EJC-LA
    Participant

    When you write “However, on the plat map, the original right of way goes through where they want to build. The right of way was moved about 20 years ago, and the other neighbor has always used it.” that the original predial servitude (and I’m assuming that this is a predial servitude and not a personal servitude) was abandoned or that the servitude was terminated and another servitude established (this would have been done by the signing and recordation of documents)?

    Because of the details concerning the possible existence or non-existence of the servitudes, this is NOT a DIY project; this requires the attention of an attorney.

    in reply to: Provisional Custody By Mandate #4167
    EJC-LA
    Participant

    It does not; in terms of what it does think the other states, it’s a specialized “power of attorney”. A PCM on allows the mandatary the specific “powers” granted by the PCM. Also, a PCM is good for a maximum of 1 year, unless the PCM sets a lesser period, or is revoked (again, subject to the 1 year maximum).

    in reply to: Notary Duties #3386
    EJC-LA
    Participant

    Acts 730, 677 & 537 reflect the way the bills affect La RS 35:199. Act 730, 2006 amended La RS 35:199 & 281 and repealed La RS 9:2741 & 2745 and La RS 35:282, 283, 284, 285 & 286. Acts 677 & 856 repealed La RS 44:184.2.

    Act 856 dealt mostly with the powers and qualifications of notaries, with a few modifications to La RS 35:199.

    in reply to: Becoming a Notary #3385
    EJC-LA
    Participant

    I came back to La. to become a notary. I spent 2 semesters at UL taking the prep course. When tuition, books, exam fees, hotel room charges, etc. are all added up I spent roughly $10,000 to get my notary commission.

    The notary exam is given twice a year: first Sat. of June and December. I failed the exam the first time I took it (by 1 question), but did manage to pass it the second time (the average is 4 times to pass). When I did pass it, 593 people statewide sat for that exam and 55 (including me) passed it.

    Now 3 years later I’m going BACK to Orlando. For all my effort and all the cost, I’ve found that people want a notary to do everything for free. They will bring you something “I found online” which of course I WON’T touch. Or the famous “I just need you to notarize this; why are you charging me to do that?”

    in reply to: Forced Heir Share #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.

    in reply to: Dies without will #2999
    EJC-LA
    Participant

    Agreed.

    in reply to: Dies without will #2995
    EJC-LA
    Participant

    Man dies without will and leaves wife and one child from a previous marriage. Who gets what? Without a will my understanding is that most everything happens automatically. So, is it necessary to have a lawyer?

    There will possibly be community property of the decedent; possibly separate property; and possibly both. Nothing happens “automatically”; if there is real estate, then it will need to show a change of title (a lot of families don’t record the change of ownership at the parish clerk’s office figuring that “well daddy died and now momma owns it all”, but down the road when it passes to the kids it will take an attorney and a fair amount of $$$$ to get the mess straightened out). Also, vehicles will need to be retitled, along with other things.

    If the decedent’s gross estate is worth less than $75,000 then you can go to a notary and have the notary prepare a Small Succession Affidavit.

    • This reply was modified 6 years, 7 months ago by EJC-LA.
    • This reply was modified 6 years, 7 months ago by EJC-LA.
    in reply to: Basic Question intestate? #2448
    EJC-LA
    Participant

    Assuming that the house is community property and not separate property: spouse has her 50% of the property and the children inherit the decedent's 50% of the property subject to the spouse's 890 usufruct.

    in reply to: Being tossed out after 20 years #2385
    EJC-LA
    Participant

    I hate to disagree with Lex, but authentic act isn't the only way to transfer immovables.CC Art 1839: A transfer of immovable property must be made by authentic act, or act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.

    in reply to: Power of attorney, real estate #2426
    EJC-LA
    Participant

    Lex will have to answer that; it's beyond the scope of my authority as a notary. I will say, however, it would be prudent to get the act done in authentic form since your original question mentioned an act of mortgage and since most mortgages in Louisiana contain language for “executory process” and that for the executory process to be enforceable the mortgage must be executed in authentic form.

    in reply to: Power of attorney, real estate #2424
    EJC-LA
    Participant

    “Power of attorney” is still used by many Louisiana notaries and attorneys because that's what the general populace expects to see; when doing notary work I'm amazed at the number of people who think that a document isn't valid until I've put my “seal” (embossed seal) on the paper even though in Louisiana a notary's signature is his “seal”. Also, I still see attorneys and notaries using “of sound mind” in wills even though the law was rewritten to reject that phraseology. Art. 1477: “To have the capacity to make a donation inter vivos or mortis causa, a person must also be able to comprehend generally the nature and consequences of the disposition that he is making.” In the Revision Comments – 1991: (a) This Article is new and is intended to change the law. It purposefully rejects the phrase “of sound mind” in order to avoid the jurisprudence regarding the usage of that phrase in the former Civil Code Article 1475, and sets forth criteria that are intentionally not limited to the prior jurisprudence. One reason for selecting a new test and rejecting the phrase “of sound mind” is specifically to overrule cases such as Succession of Buvens … See also Succession of Brugier ….”However, in 1997 the Legislature defined two specific concepts:1) Art. 2987 ... Procuration defined ... : A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.  In the Revision Comments - 1997: (a) This provision is new. It is based on Article 2985 of the Louisiana Civil Code of 1870.  The civilian term "procuration" has been used instead of the colloquial "power of attorney", which is a common-law term of art.  This usage avoids confusion with common-law institutions and the representative as "attorney(-in-fact)". (Parenthetical mine)2) Art. 2989 ... Mandate defined: A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. In the Revision Comments - 1997: (b) Article 2985 of the Louisiana Civil Code of 1870 uses synonymously the terms mandate, procuration, and letter of attorney. This is both inaccurate and confusing. A mandate is a contract; a procuration or letter or attorney is a unilateral juridical act. In this revision, the word mandate applies to a contract by which the principal confers authority on the mandatary to transact one or more affairs for the principal. The word procuration applies to unilateral juridical acts by which the principal confers authority on an attorney or other person to represent him in legal relations.  (Note that while the mandate covers most all situations contemplated by the common-law "power of attorney" that term and the attendant "attorney-in-fact" have be left out of the article relating to mandates and the term "mandatary" is used instead.)Also a quick note about Art. 2993: while a mandate isn't require to be in any particular form, if the act authorized in the mandate is required to be in a specific form then the mandate must also be in that form.  For example, since a donation (of both immovables and movables) is required to be in authentic form, the mandate must also be in authentic form. This is true even if the donation is a movable (vehicle); while it has be stated that OMV policy is they will accept non-authentic donations between family members, Art. 1541 is quite clear about the requirements: "A donation inter vivid shall be made by authentic act under penalty of absolute nullity, unless otherwise expressly permitted by law."

    in reply to: Power of attorney, real estate #2422
    EJC-LA
    Participant

    I don't want to butt in, but the Lege did away with “power of attorney” nearly 20 years ago.

    in reply to: Overtime and garnishment #2356
    EJC-LA
    Participant

    29 CFR § 785.48(b) establishes that employers can choose one of three methods for "rounding." They can use 5 minutes, they can use 6 minutes (1/10 of an hour) or they can use 15 minutes. That's IT. Further, they have to be able show that this method of rounding doesn't result in loss of the employee's pay. Does she give everyone the same number of breaks, and follow the same policy? If not, she's either giving you extra breaks, or giving the other employees too few. If you complain to her, here's what could happen: she could stop allowing breaks, including meal breaks. There is no law that requires them. She could fire you, for being one minute late, one time.If this were me, I'd quit smoking. It's not good for you anyway. Failing that, get an app for your cell phone (you do have one, right?) that allows you to track your time. Here's a link to a page that has links to a number of apps.  https://itunes.apple.com/us/app/worktime-tracker-time-tracking/id648154021?mt=8Then check your hours against the supervisor's. Is she using a time clock, or manually keeping track? In any case, this will give you an idea how much time is being unpaid. Keep screen shots of the hours on your app and then keep track of the time you are actually paid. I don't see any way this will end up with you keeping this job, actually. You'll end up either accepting what the instructor says, or preparing your case carefully and then contacting Federal Wage and Hour. If you win, in wage and hour, they'll investigate all of the employee time cards. By the way, if you are exempt (i.e., on salary) different rules apply. If you are a firefighter, police officer, or EMT, different rules may apply.

    A bit of a correction here.  "Hourly" and "salary" are methods of payment only.  What determines whether one is exempt from the overtime rules is what the employee does.  As an example, a secretary could be paid salary, but if said secretary works more than 40 hours in a week then overtime applies and would have to be paid.

    in reply to: Overtime and garnishment #2352
    EJC-LA
    Participant

    According to Federal law, any breaks of less than 20 minutes must be paid.

Viewing 15 posts - 1 through 15 (of 25 total)