Property And Estate Devolution Utilizing Fidei Commissum de Residuo: Finding Residual

Matthew I. Berger (Partner, Berger & Marx, LLP) has written a new article entitled Property And Estate Devolution Utilizing Fidei Commissum de Residuo: Finding Residual, 54 Loy. L. Rev. 129.

Here is a summary of the article:

… However, when the legacy provides that the substitution is to affect only the residuum of the property at the first legatee/institute’s death, the second legatee/substitute is only entitled to what is left of the property, or proceeds from a sale or insurance that have not yet been paid to the first legatee/institute. … These questions of intent were answered in Roman law by a default mechanism mandating and defining the first donee’s obligation of accounting to the second donee in a fidei commissum. … Alternatively, if the intent of the testator was that the second legatee should be allowed to collect funds from the alienation of the thing, amendments to the Louisiana Civil Code should provide default provisions stating either that the first legatee must place the proceeds in a separate bank account, or that the proceeds that are placed in a bank account containing funds belonging to the first legatee’s patrimony will be deemed to have been spent last. … Additionally, since the testator can utilize a usufruct or trust if he wishes to ensure the second legatee’s receipt of property in a double bequest, the second legatee should not be entitled to property purchased with proceeds from the first legatee’s alienation if the testator chooses to leave the property subject to a fidei commissum de residuo.