Louisiana Civil Code

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SECTION 4 - HOW THE RECORDER OF THE PARISH OR THE NOTARY IS BOUND TO PROCEED IN THE JUDICIAL PARTITION

Art. 1347. The officer appointed to make the partition is bound, within fifteen days at farthest from the notice of his appointment, to notify the heirs or their representatives, in writing, of the day, hour, and place in which he is to commence his work, sufficient time previous thereto, to enable them to attend, if they think proper.

Art. 1348. As the business of partitions sometimes requires several days, the officer may divide his proces verbal, and make as many vacations or sittings as he thinks proper. [Amended by Acts 1960, No. 30, §1, eff. Jan. 1, 1961]

Art. 1349. On the day appointed for the partition, the officer shall begin by settling the accounts, which each of the heirs may owe to the succession.

Art. 1350. The officer shall include in these accounts:

1. The sums which each of the coheirs owes to the deceased;

2. Those which each of the coheirs may have received or disbursed on account of the succession, whether for the payment of debts or for necessary and useful expenses on the effects of the succession;

3. Those which each of the coheirs may owe by reason of damages or injury, which have been caused by his fault to the effects of the succession.

Art. 1351. The accounts being thus settled, the officer must deduct from the effects of the succession the things which have been bequeathed by the deceased, either to any of the coheirs beyond his portion when the collation is dispensed with, or to any other persons, as these things ought not be included in the mass of the effects to be divided.

Art. 1352. If the partition is to be made between children or descendants inheriting from their father, mother or other ascendant, and a collation is to be made, the officer shall cause the decree of the judge to be exhibited to him, by which it is decided whether the collation is to be made in kind, or by taking less. [Acts 2004, No. 26, §1]

Art. 1353. If the collation is to be made in kind, the officer is bound to include the property collated in the number of the effects of the succession, for its estimated value, which shall have been fixed by experts appointed by the judge, as is said heretofore.

Art. 1354. If, on the contrary, the collation is to be made by taking less, the officer shall add to the credit of the estate the sum due by the heir who is bound to make the collation, according to the appraisement which shall have been made by experts appointed by the judge, separately from the other articles of the succession, in order that the other heirs may have a sum of money or some object equal to the estimated value of the property subject to collation.

Art. 1355. The officers [officer] shall then proceed to the formation of the active mass of the succession.

Art. 1356. This active mass shall be composed:

1. Of all the movables and immovables of the succession, which have not been sold, mention being made of their value, as stated in the inventory of the effects of the succession, or in the new appraisement which may have been made by experts appointed by the judge;

2. Of the price of the movables and immovables, which have been sold to effect the partition;

3. Of all the objects collated by the heirs, whether in kind or by taking less, in proportion to the appraised value given to them by the experts appointed by the judge;

4. Of all the sums, which the heirs may owe to the succession, according to the settled account;

5. Of all the debts due to the succession by other persons.

Art. 1357. The active mass of the succession being thus formed, if there be no collation, or if the collations are made in kind, the officer proceeds to the deductions to be made from the mass, in order to ascertain the balance to be divided.

Art. 1358. By deduction is understood a portion or thing which an heir has a right to take from the mass of the succession before any partition takes place.

Art. 1359. The deductions, which are to be made before the partition of a succession, consist:

1. Of the sums due to one or more of the heirs for a debt due them by the deceased, or advance [advances] made to the succession, or expenses on its effects, according to the account settled among the heirs;

2. Of the amount owing to the heirs to whom a collation is due, when the collation is made by taking less, in order that the heirs may receive a portion equal to the amount of the collation which is due;

3. Of the privileged debts due or paid on account of the succession, which have been incurred since the death of the deceased, or in order to effect the partition.

Art. 1360. When the collations have been made in kind, or when there is none to be made, the deductions are taken from the active mass of the succession, and the balance remaining forms the mass to be divided.

Art. 1361. But when the collation is made fictitiously and by taking less, the officer having formed the active mass of the succession, including the collation, deducts the sum at which the property collated is estimated, and on the mass thus reduced the deduction is made.

Art. 1362. When the deduction which is to be made in favor of the heir to whom the collation is due, has been ascertained and established, according to the preceding article, if there be among the effects of the succession any movables or immovables, which this heir wishes to take at the estimated value in payment of the amount of the collation due to him, he can take them at his choice, and the officer shall give them to him.

Art. 1363. If there be two or more heirs, who have a right to receive the collation due to them in the property and effects of the succession, and they can not agree on the partition of the effects which they have thus chosen, the officer shall appoint experts to form allotments of these effects, for which the parties entitled to the collation shall draw lots, in the same manner as is hereafter prescribed for the formation and drawing of the lots of the definitive partition.

Art. 1364. When the deductions have been made, and those to whom the collations were due have received them, as is said in the preceding article, the officer divides what remains into as many equal lots as there are heirs, or roots entitled to a share.

No subdivision of the lots thus formed need be made between the individual coproprietors claiming under the same root.

A partition thus made, even without a subdivision being made of the lots to which each root may be entitled, shall be a definitive partition. [Amended by Acts 1938, No. 407]

Art. 1365. In the formation and composition of the lots, care must be taken to avoid as much as possible the cantling of tenements, and not to separate what is necessary for the same cultivation. And there ought to be included, if possible, in each lot, the same quantity of movables, immovables, rights and credits of the same nature and value.

Art. 1366. When the lots are of unequal value, such inequality is compensated by means of a return of money, which the coheir, having a lot of more value than the other, pays to his coheirs.

Art. 1367. The lots are formed by experts chosen for that purpose and sworn by the officer charged with the partition, and are afterwards drawn for by the coheirs.

Art. 1368. [Repealed. Acts 1960, No. 30, §2, eff. Jan. 1, 1961]

Art. 1369. [Repealed. Acts 1962, No. 70]

Art. 1370. The rules established for the division of estates to be partitioned, are equally applicable to the subdivisions to be made between the individual coproprietors claiming under the same root.

Art. 1371. No partition is made of the passive debts of the succession; each heir remains bound for the part he takes in the succession, but in order to equalize the shares, those heirs who take the largest allotments may be charged with the payment of a larger portion of the debts.

Art. 1372. Partitions, made agreeably to the above rules by tutors or curators of minors, or by curators of interdicted or absent persons, are definitive; but they are only provisional, if the rules have not been observed.

Art. 1373. When the partition is only provisional, absent persons, minors, and persons interdicted may, if they find themselves injured thereby, demand that another be made, as provided by the section relative to the rescission of partitions.

A minor may institute this action, even before he attains the age of majority. [Amended by Acts 1979, No. 711, §1; Acts 1991, No. 107, §1]

Arts. 1374-1377. [Repealed. Acts 1960, No. 30, §2, eff. Jan. 1, 1961]

Art. 1378. The form in which the officer is directed to make the act of partition, as is above described, is not a matter of such strict law that nullity results from the act, in case of this officer making any change in the form; provided all the provisions of the law relating to the formation of the accounts between the parties, the deductions, the composition of the mass of the succession, the appointment and oaths of the experts and the making and drawing of the lots, have been observed in the partition, and the parties interested therein, or their representatives, have been duly notified to be present at the same.

Art. 1379. After the partition, delivery must be made to each of the coheirs, of the title papers of the objects fallen to his share.

The title papers of a divided property remain in the possession of the heir who has the most considerable part of it, under the obligation of producing them, when required by the coproprietors of the other part of the property.

Titles common to the whole inheritance shall be delivered to the person chosen by all the heirs to be the depositary of them, on condition of producing them as often as required. If they should not agree on that choice, such deposit shall be made by the order of the judge.

Art. 1380. If, after the partition, a discovery should be made of some property not included in it, the partition must be amended or made over again, either in totality, or of the discovered property alone.

Art. 1381. [Repealed. Acts 1990, No. 989, 7, eff. January 1, 1991]