Legal Question in Wills and Trusts in Louisiana

Re: disposal of immovable properties

Dear LawGuru Friend,

Your question is an interesting one. First of all I assume that when your father died, that your mother and he had a community estate together. I assume he did not leave a will. If so, then what he left at the time of his death, at least his half of the jointly owned community property, went to the children, share and share alike; and that your mother had the usufruct over the portion of the community estate left by your father to the children.

Now your mother can give away whatever she owns to whomever she pleases. However, to favor one child over another with an inter vivos (between living persons) donation, may give the remaining children some rights to reimbursement when your mother dies. This is called the right to "collation" in Louisiana. Also, what your mother will be able to give to your sister out of the community property she and your father acquited together is your mother's undivided interest in a the property. For her to do so does not deprive you of anything you already have, and that is an undivided interest in the property, subject to the usufruct in favor of your mother. Now I am of the opinion that your mother can deed the usufruct over the property, as well as her undivided interest in the property to your sister. Now, as I have probably said above, your mother cannot give away to anyone that which is yours; and on this set of facts, you own an undivided interest in what the law calls "naked" ownership in the proper that used to be owned jointly (in community) by your mother and father, all subject to the usufruct in favor of your mother. Now, as I said, depending on how your mother words the donation to your sister expressing her intent, you and your other brother(s) and sister(s) may have the right to have the value of whatever your mother gives your sister inter vivos added back into the mass of the succession so that your mother's estate may be divided equally among all of the children. This is based on a policy of the law that all children should be treated equally. There is more to it all than this, but this is something to think about. Best of luck!

Sincerely,

Hardy Parkerson, Atty.

Lake Charles, LA

Re: disposal of immovable properties

The simple answer is no. A usufructuary does not have the right to dispose of property.