If your loved one created an estate plan that included specific gifts, or donations, to be made when your loved one died, these types of gifts are known as donations mortis causa. According to Louisiana law, the person making the gift can donate all or part of their property at the time of death.
The donation mortis causa remains revocable during the testator's life, but what happens after the testator dies? There could be legal complications that affect the transfer of property.
Capacity to Make a Donation and Capacity to Receive a Donation
Before a donation mortis causa is distributed, concerns about the testator's capacity to make a gift or the recipient's capacity to accept a gift may be raised.
A testator can make a donation if at the time the testator executes the donation:
- The testator is 16 years old or older. However, an exception occurs if the testator is already married or has children. In those cases, the testator may make a donation mortis causa in favor of a spouse or children even if the testator is not yet 16 years old.
- The testator must be able to understand the consequences of the gift being made.
If someone challenges the person's capacity to make a donation, the challenger must prove by clear and convincing evidence that the person making the donation lacked capacity when the will was executed.
It is much easier to receive a donation than to make a donation. Anyone who is in existence at the donator's death has the capacity to receive a donation.
Accepting a donation is a little trickier, however. Special circumstances may require that certain things are done to preserve the gift. For example:
- Adults can typically accept donations on their own or have their attorneys accept donations for them. If the adult cannot make their own decisions and is under interdiction, the curator, or the person who has the legal authority to care for the adult, may accept the donation.
- Children cannot legally accept donations. However, the minor child's parent or tutor may accept the donation on the child's behalf. If the donation is left in a trust, the trustee may accept the donation on behalf of the child.
- Charities can receive gifts as long as they are in existence at the time of the testator's death. Administrators of the charity or hospital may accept the donation on behalf of the organization.
If there is an issue with the capacity to make, accept, or receive a gift, the donation may be nullified.
Other Reasons a Donation May Be Nullified
A donation mortis causa can still be nullified even if the testator could make the gift and the recipient could accept and receive the gift. For example, a donation may be void or nullified if:
- It was made under duress
- There was fraud involved
- The testator was under undue influence to make the donation
- The property does not exist at the time of donation
- The donation is conditional on paying debts and charges other than those that existed at the time of the donation
- The witnesses and notary signed the document attesting the testator's signature hours before the testator signed the document
If the donation is nullified, the property will go back to the estate and pass according to the terms of the donator's will or the Louisiana laws of intestacy.
Talk to a Louisiana Succession Lawyer
You want to make sure that your loved one's estate is handled according to your loved one's wishes. However, sometimes the process can get complicated quickly such as when an heir disputes a donation and seeks to have it nullified.
Our experienced Louisiana succession attorneys will make sure that all applicable laws are followed and your loved one's estate is probated fairly. Let us help you do the right thing by your loved one and for your family. Contact us today by phone or through this website to learn more.