Louisiana law provides that without a will, separate property is inherited in a unique inheritance order unlike that in most other states. That order is somewhat complicated, and its unusual provisions often come as an unwelcome, devastating surprise to the surviving family.
If one is married but has no will, ones line of inheritance in Louisiana is the same as that of a single person. That is: Actual usage (usufruct) of funds and property are given to the parents of the deceased; the deceased’s siblings are granted naked ownership. If the deceased’s parents die first, then the siblings inherit full ownership with usage rights.
Where’s the wife or husband in all this? Out in the cold, without a will specifying his or her inheritance. Children are somewhat better protected in the event of no will – but a spouse inherits nothing at all beyond community property … and “community property” is not defined in ways most people assume it is; many valuable assets may be “separate property,” instead, and that spells danger for the surviving spouse.
By legal definition, separate property is that which is acquired prior to a marriage; acquired by inheritance or donation to one spouse individually; or acquired by one spouse with separate funds or with separate and community funds where the community funds are very small in comparison to the separate funds.
How does that legalese translate to a real-life situation? Well …
Say two young married men start buying business property together. Their wives have no part in these acquisitions and each wife signs off as an “intervener” (that is, they declare and agree that the property is being purchased by their husbands with separate funds, and is not part of the marital property). Now, say that both men are killed in a tragic accident and, being young, healthy and robust, they’ve never thought to prepare wills.
This “separate property” is not part of community property – even though it was purchased after the marriage – and neither wife will inherit. If neither man has children, the inheritors will be the parents or the siblings of the deceased. If the men do have children, the children will inherit naked ownership, but not usage rights. In either event, the wives – the mothers of those children – do not inherit either naked or usufruct rights, absent a will stating anything to the contrary.
For another example, suppose you inherit a camp or farmland in Louisiana, and even though you were married twice, you never had children of your own. Your second wife had children with her first husband, but while you raised them and loved them as your own, you never did legally adopt those children. If you die before executing a will, the camp and farmland are separate property (because you inherited them individually, not as community property).
Your wife cannot inherit your separate property unless you leave it to her in a will and, in this instance, the children you’ve loved and raised as you own can’t inherit, either, since they never were legally adopted. Absent a will stating otherwise, your parents, if living, inherit the separate property; if your parents are deceased, your siblings inherit.
Clearly, the peculiarities of Louisiana law necessitate anyone with property to leave take the time to file a properly drafted will with trust provisions to ascertain that his/her family is cared and provided for according to his/her wishes. As it relates to separate property in Louisiana, there is no protection for a spouse or significant other without a will – but a correctly drafted one will insure their protection in the event of your death.
Louisiana estate planning with a correctly drafted will insures your family’s protection. With over 30 years of experience, the attorneys at Melcher’s Law Firm use their knowledge and the client’s circumstances to determine the type of trust or will to recommend.
By: Andrew Stratton
Posts Tagged ‘Provisions’
Louisiana Estate Planning Under Napoleonic Code Is A Bit "Different"
April 22nd, 2010Basic Classification of Law
January 21st, 2010These days when there are any flaws in our system or any failure in the operations; we react impulsively to such situations. So when we are quite alert to making others realize their responsibilities instantly, same should be the case with regard to our responsibilities. We also need to realize our responsibilities completely and be completely aware about the day to day scenario. With so many crimes taking place, it is the duty of every responsible citizen to have a complete know-how about the situation. With the scenario in the world totally changing, ignorance of the law cannot be any excuse for the commitment of a crime. Sometimes it just happens where in spite of our fair intentions we need to be completely aware so that we prevent ourselves from any fake intentions. Further when we have a better insight about the law and order we can even have a better knowledge about the rights and responsibilities. A better insight about the law of the law can serve as a handy tool in case of emergency situation, thus it will help you to make better decisions with regard to the situation you are dealing with. There are three major divisions of law and each of the below mentioned divisions is looked after by an attorney general.
First of all there are two classes i.e: Domestic and international laws.
Domestic laws are the laws which are applicable within the boundaries of our nation. The main objectives behind the enforcement of these laws are to ensure that the citizens of the concerned country are completely protected against violence. These laws contain the regulations which have provisions for punishing the people who violate against the law. Domestic laws are basically intended to safeguard the citizens.
International laws on the other hand are intended to establish and manage the relationship with the other countries. With the liberalization policy in 1991 there is more concentration been laid to govern the relationships with the other countries in a smooth manner. The major source of the international laws is the treaties, signed by the various nations and all these regulations bind the parties concerned with the different deals. » Read more: Basic Classification of Law
Service Tax On Equipment Leasing And Hire-Purchase – Whether Un-Constitutional ?
December 11th, 2009Surender Kumar Jain
This article makes a comprehensive analysis of the decision of the High Court in Kerala Non-banking Finance Companies Welfare Association v. Union of India [2009] 20 STT 1, wherein a recent issue as to : whether charging of service tax on banking and other financial services which include equipment leasing and hire-purchase, is unconstitutional, has been considered.
1- Vide section 137 of the Finance Act, 2001 service tax is introduced on ‘Banking and other financial services’ which include ‘equipment leasing and hire-purchase’. The impugned provisions providing for service tax on ‘Equipment leasing and hire-purchase transactions’ are introduced by amending the Finance Act, 1994. The relevant definition of ‘Banking and other financial services’ is contained in clause (12) of section 65 of the Finance Act, 1994. Along with the introduction of the definition of ‘Banking and other financial services’, the charging section, namely, section 66 of the Finance Act, 1994 is also amended to cover tax on value of taxable services referred to in sub-clause (zm) of section 65(105). The question as to whether charging of service tax on ‘Banking and other financial services’, which include equipment leasing and hire-purchase, is unconstitutional, arose for consideration of the Kerala High Court in the case of Kerala Non-Banking Finance Companies Welfare Association v. Union of India [2009] 20 STT 1.
2 – The petitioner No. 1, an association of non-banking financial companies, which was covered under the definition of ‘Banking and other financial services’, and its two members, viz., petitioner Nos. 2 and 3 had filed a writ petition challenging the constitutional validity of the impugned provisions of section 137.
3 – These are discussed as under :
(a)- The Parliament has no authority to legislate on hire-purchase and leasing transactions which are subjects left for levy of sales tax by the States under entry 54 of List II of the Seventh Schedule to the Constitution of India.
(b)- After the 46th Amendment to the Constitution introducing clauses (29A)(c) and (d) to article 366, States are authorised to provide for sales tax among other things on hire-purchase and leasing transactions.
(c)- As a follow-up measure, all the States including the State of Kerala introduced provisions in the respective Sales Tax Acts authorising levy of sales tax on hire-purchase and leasing transactions.
(d)- Impugned provisions for levy of service tax on hire-purchase and leasing transactions are discriminatory and violative of articles 14 and 19(1)(g) of the Constitution.
4 – These are as follows :
(a)- Even though service tax is payable on the value of taxable service pertaining to leasing and hire-purchase transactions, the Government of India had vide Notification No. 4/2006-ST, dated March 1, 2006 granted exemption on 90 per cent representing interest income earned by the service provider.
(b)- The Supreme Court had upheld the legislative competence of the Parliament to levy service tax under the residuary entry 97 to List I of the Seventh Schedule in the decisions in Tamil Nadu Kalyana Mandapam Association v. Union of India [2006] 4 STT 308, C.K. Jidheesh v. Union of India [2005] 2 STT 242 and Gujarat Ambuja Cements Ltd. v. Union of India [2005] 1 STT 41 and thereafter, through constitutional amendments entry 92C to List I of the Seventh Schedule and article 268A are introduced expressly giving authority to the Parliament to legislate on service tax.
(c)- The validity of legislation and the grievances of the petitioners should be considered with reference to the aforesaid Notification No. 4/2006-ST, dated March 1, 2006, by which rigour of the levy was neutralized by granting exemption on 90 per cent of the charges received in the hire-purchase and leasing transactions, thereby completely excluding interest on loans from service tax.
5 - It is well-settled that the Constitution by virtue of the provisions contained in article 366(29A) authorises, levy of sales tax on hire-purchase transactions and on leasing of goods and based on the same there is State legislation authorising it.
6 - The legislation applies to all engaged in banking and other financial services and is not confined to members of the first petitioner. In fact, banking companies in the public Sector are also liable to pay service tax on financial leasing service including equipment leasing and hire-purchase . Since the petitioners had not established the parties engaged in the same business who were left out and how they were discriminated, the contention was to be rejected. Similarly provisions of service tax do not take away or create any unreasonable restriction on the fundamental rights of the members of the first petitioner including petitioner Nos. 2 and 3 to carry on business. Therefore, the allegation of violation of article 19(1)(g) also, did not merit consideration.
7 -There is no conflict between the levy of sales tax on the sale or deemed sale of vehicle under the hire-purchase agreement and the service tax payable on services rendered by the financier under the hire-purchase agreement. The provisions contained in article 366(29A) of the Constitution authorising levy of sales tax on the supply of goods under the hire-purchase agreement does not stand in the way of the Parliament levying service tax on taxable service charges received in respect of hire-purchase transactions by the financiers.
It is obvious that levy of sales tax is possible on sale of goods involved in the transactions while service tax can be levied on the service charges received in the transactions. Further, the provisions pertaining to levy of service tax on hire-purchase or lease transactions are not in any way different from the service tax authorised for the large number of transactions under the Finance Act, 1994, the constitutional validity of which is upheld by the Supreme Court. Since incidence of service tax is not on sale of goods or deemed sale of goods pertaining to leasing and hire-purchase transactions covered by clauses (c) and (d) of article 366(29A), the Parliament has authority to authorise levy of service tax on banking and other financial services including equipment leasing and hire-purchase.
Impugned provisions of levy of service tax on hire-purchase and leasing transactions are not discriminatory and violative of articles 14 and 19(1)(g).
By: taxmann
