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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 11764
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Is it fraudulent when a surving spouse deliberately omits a

Customer Question

Is it fraudulent when a surving spouse deliberately omits a monetary account from the lists of assets on a will that is being probated in an effort to deny children of the deceased any right to a portion?
Submitted: 11 months ago.
Category: Family Law
Expert:  LegalGems replied 11 months ago.

My sympathies for your recent loss;

can you please tell me if the surviving spouse is the executor for the estate?

Customer: replied 11 months ago.
Customer: replied 11 months ago.
I also have a question about about a particular (use or mis-use) of the usafruct law in Louisiana. Is it legal for the surviving spouse to scim off and keep any interest accumulating on an account that is being held for the surving children (the children are listed as the owners of the account),but the surviving spouse's name is attached.
Expert:  LegalGems replied 11 months ago.

The first question is relating to Mississippi, correct? Also can you post that second question re: LA in a new thread as I am an individual contributor and must comply with the site rules re: one question per thread.

Customer: replied 11 months ago.
All of the questions are in Louisiana. Everything has occurred in that state.
Expert:  LegalGems replied 11 months ago.

Thank you; the question came through as Mississippi so thank you for that clarification.

An executor has a fiduciary duty to the estate. A fiduciary duty means that the person in the fiduciary capacity owes a duty to the other person- and that the fiduciary must act in good faith, with the best intentions, to preserve any property that is at issue. Failure to act in this manner (essentially, a trust/guardian) is considered a "breach" and can result in:
1. removal of the fiduciary
2. sanctions (ie fines, award of attorney fees, etc)
3. damages (economic liability for the damages suffered by the party to whom the duty was owed)

So failing to list all of the estate assets would be considered a fiduciary breach.

As for the acccount:

A usufruct is "a real right of limited duration on the property of another. The features of the right vary with the nature of the things subject to it as consumables or nonconsumables." La. Civ. Code art. 535. The usufructuary has the right of use and enjoyment of the property for a limited time, usually for life. The naked owner enjoys title to the property and may alienate or encumber the property subject to the usufruct, but in doing so cannot interfere with the right of the usufructuary. La. Civ. Code art. 603, 605.

Since money is a thing which cannot be used without being expended, a deposit account would be the subject of a consumable usufruct. See La. Civ. Code art. 536. The usufructuary becomes the owner of the consumables and may consume, alienate, or encumber them. "At the termination of the usufruct he is bound to pay to the naked owner either the value that the things had at the commencement of the usufruct or deliver to him things of the same quantity and quality." La. Civ. Code art. 538. Comment (c) to Article 538 indicates that Louisiana courts have consistently required the usufructuary to restore the value that the things had at the commencement of the usufruct. In essence, the usufructuary of a consumable usufruct possesses a qualified ownership which does not exclude the rights others may possess or enjoy upon termination of the usufruct. See Stewart v. Usry, 399 F.2d 50, 55 & n.11, 56 (5th Cir. 1968). The usufruct in favor of a surviving spouse creates "dual but separate interests in property. . .which taken together comprise all the attributes of ownership, but this ownership, does not by virtue of the interests passing from the decedent to the surviving spouse, vest in the spouse." Id. at 57, 58 (emphasis added).

So if the children are the "naked owners" of the account any money withdrawn must be replenished so the children have full access to such funds.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 11 months ago.

Hi- just checking in to see if you needed clarification on any of the above information. If so please post here (there is no additional charge for this) and I will do my best to get you the requested information.

Thank you!