Estates

There are 4 main stages in the settlement of an estate.

1. Drawing up the deed of notoriety

Definition: “A deed of notoriety is a document drawn up by a public official (notary, civil registrar, mayor, consul) or magistrate, depending on the case, stating the declarations of several people attesting that a fact is public knowledge, i.e. known by a large number of people and of which they have personal knowledge”.

1. For estates worth less than €5,000

It is not compulsory to draw up a deed of notoriety for estates of less than €5,000. It can be replaced by a certificate signed by all the heirs.

• Role

It is signed by all the heirs and provides proof of their status as heirs. It will therefore be possible to use this certificate :

• Withdraw sums from the deceased’s bank accounts, up to a limit of 5,000 euros, to pay for conservatory acts (you must present supporting documents to the financial institution, such as invoices, funeral order forms or tax notices).
• If the total sums held by the bank are less than 5,000 euros, it will be possible to close the deceased’s accounts and pay out the full amount.

The heir making the application to the bank must provide the following documents:

• Certificate signed by all the heirs: Person appointed by law or by a will to take over the estate of a deceased person.
• Birth certificate
• Extract from the deceased’s birth certificate and a full copy of his or her death certificate
• Extract from the deceased’s marriage certificate, if married at the time of death
• Birth certificates for each beneficiary named in the certificate
• Certificate of absence of last will and testament. This document can be obtained from the central file of last wishes (FCDDV) or from the association for the development of notarial services (ADSN).

• Mandatory information

The heirs must include the following information on the certificate:

• There is no will or other heirs of the deceased.
• There is no marriage contract
• The person presenting the document is authorised to collect sums from the deceased’s accounts on behalf of the heirs, or to close them
• There are no legal proceedings or disputes in progress concerning the identification of an heir or the composition of the estate
• The estate does not include any immovable property: property that cannot be moved (e.g. land or a flat) or an object that is an integral part of it (e.g. a fence on the land).

All the heirs must sign the certificate.

• Price

Cost of producing the certificate of no last wishes. Request from France: 18 euros

Request from a French overseas department or territory: 16.28 euros

Request from abroad: 15 euros

1. For estates over €5,000

A deed of notoriety is compulsory for estates worth more than €5,000. It must be drawn up by a notary.

• Role

It is used to prove heirship and to release sums in the deceased’s bank accounts in excess of €5,000.

To draw it up, the notary needs the deceased’s next of kin to provide him with the documents needed to identify the family members concerned by the inheritance (family record book, marriage contract, divorce decree, etc.).

If a will has been drawn up and is kept at the deceased’s home, it must be given to the notary to be applied. The notary must check the central file of last wills and testaments to find out whether any provisions have been made by the deceased. (Will, gift between spouses)

• Mandatory information

The deed shall contain :

• The identity of the deceased
• Whether or not there are any special provisions concerning the inheritance (will, gift between spouses)
• Relationship and degree of relationship of each heir to the deceased
• Share due to each heir
• Signed agreement by the heirs to take over the deceased’s estate

• Price of the deed of notoriety

The notarial deed costs 57.69 euros (69.23 euros inc. VAT).

1. The notary draws up a full statement of the deceased’s assets

1. Mandatory use of a notary

The presence of a notary in an estate is compulsory when :

• the value of the estate is equal to or greater than €5,000
• The estate includes real estate (a certificate of real estate ownership must be drawn up)
• There is a will or a gift between spouses

1. A statement of the deceased’s assets

The complete balance sheet of the deceased’s assets includes the identification and valuation of the deceased’s property (bank accounts, securities, furniture, real estate, etc.), as well as debts.

The heirs must provide the notary with all the documents (property deeds, bank statements, savings books, invoices, loan offers, etc.) needed to assess the assets and liabilities of the estate, as well as details of the various transactions carried out by the deceased in the past (purchases, sales, exchanges, incorporation of companies, donations, etc.). The notary may consult the FICOBA file to obtain information on bank accounts opened in the name of the deceased and the FICOBIE file, subject to being authorised by a potential beneficiary, to identify life insurance policies taken out by the deceased for the benefit of the heirs.

The notary draws up either a simple statement of assets or an inventory.

• The notary carries out the mortgage and tax formalities relating to the death.

These formalities include

• The drawing up and publication at the Service de la publicité foncière of a real estate certificate for immovables, within one month and, at the latest, within four months of the day on which the notary was required (decree 55-22, 4 January 1955, art. 33). The certificate is not required if the notary draws up and publishes a deed of partition within ten months of the death (Decree 55-22, 4 January 1955, art. 29, para. 4).
• Drawing up the declaration of inheritance, a compulsory document even if there is no duty to pay. By way of exception, direct line heirs, the surviving spouse or the surviving civil union partner are not required to file an inheritance declaration if the gross assets of the estate are less than 50,000 euros (3,000 euros for estates outside the direct line) and they have not previously received an unregistered or declared gift or manual donation from the deceased.
• Filing the declaration and, where applicable, payment of inheritance tax at the tax office within 6 months of the death (one year if the death occurred outside France).
• Any request for deferred payment or payment in instalments.

At this stage of the process, the heirs may or may not decide to divide the estate, either wholly or in part.

1. The notary draws up a deed of division of the estate assets

The heirs may decide not to share: in this case, they remain in “indivision”. If they intend to remain in joint ownership for the long term, they are advised to organise its management in a notarised agreement: duration (limited to 5 years and renewable), rights and duties of each party, appointment of an agent if necessary.

If joint ownership is deemed too restrictive, the heirs may decide to divide the property in part. In principle, partition can be requested at any time.

In the event of persistent disagreement (over the composition of the lots or their valuation, for example), the notary cannot settle the dispute between the heirs, who must then apply to the court. This entails delays and additional costs.

Special formalities and procedures for an estate

If there is a minor or a protected adult among the heirs, it may be necessary to convene the family council, consult the guardianship or family court judge or obtain their authorisation.

Some assets require specific procedures to be carried out (business assets, farms, businesses that need to be maintained or transferred).

If you are looking for one or more heirs or legatees, you may need to consult a genealogist.

It may also be necessary to appoint an expert or a court-appointed administrator.

Acceptance and refusal of an estate

An heir is free to accept or reject the succession. They have 10 years in which to exercise their option, unless a creditor of the succession, a co-heir, a subsequent heir or the State summons them by bailiff to take a position (this summons can only be served 4 months after the death).

There are three options available to those called upon to inherit:

• Acceptance pure and simple, which means that the heir is obliged to pay all the deceased’s debts without limitation, even out of his own assets;
• Acceptance up to the amount of the net assets, which has the effect of limiting the heir’s payment of the succession’s debts to the share he receives in the succession;
• renunciation of the succession. The heir is then considered never to have been an heir. They do not receive any assets, but in return they do not have to pay the deceased’s debts.

Rights and obligations of heirs

Before making their choice, the heirs may carry out “purely conservatory or supervisory acts and acts of provisional administration” (e.g. payment of rent or taxes owed by the deceased) without being considered as acceptors of the estate, i.e. without the risk of personally bearing the debts (article 784 of the Civil Code).

In the event of pure and simple acceptance of the succession, and the discovery of liabilities unknown to the heir that seriously threaten his assets, the court may discharge him in whole or in part from his obligation to pay (article 786 of the Civil Code). The heir must bring the action within five months of becoming aware of the existence of the debt.

Management of undivided property:

• The two-thirds majority rule replaces the unanimity rule for the simplest decisions, such as selling furniture to pay debts or entering into a residential lease(article 815-3 of the Civil Code);
• A proxy may be chosen by mutual agreement between the heirs, who may be one of them or a third party. The judge may also appoint an undivided co-owner as administrator of the joint ownership(article 815-6 of the Civil Code);
• In the event of serious disagreement between the heirs, a court-appointed representative may be appointed, with such powers as the court may decide, which may extend to the sale of the estate’s assets(article 813-1 of the Civil Code).

How long does it take to open the estate?

The succession is opened at the time of death. The tax system applicable to the estate will be that in force on the date of death as recorded in the death certificate.(Article 720 of the Civil Code)

If it is not possible to prove the date of death (in the event of disappearance, for example), the estate will be opened on the date of the civil status certificate recording the death, and not on the date of disappearance.

How long does it take to settle an estate?

The heirs must complete the inheritance declaration and pay inheritance tax within 6 months. In the event of delay, interest of 0.20% per month is payable to the tax authorities and a penalty of 10% from the ^13th month after the death.

When you inherit, there is what is known as the inheritance option. You can simply accept the succession, accept the succession up to the amount of the net assets or renounce the succession.(Articles 768 to 781 of the Civil Code)

From the time the succession is opened, the heirs have 4 months to exercise the succession option. During this period, no-one can force an heir to make a choice.

If no choice is made within this 4-month period, a creditor of the succession, a co-heir, a subsequent heir or the state may force the heir to make a choice. The heir will then have 2 months to make a choice or ask the judge for more time. If no choice is made, the heir will be deemed to have accepted the succession purely and simply.

If no-one forces the heir to make a choice, he has a maximum of 10 years in which to make a decision. Once this period has elapsed, the heir will be deemed to have renounced the succession.

1. Pure and simple acceptance (articles 782 to 786 of the Civil Code)

When you accept the succession purely and simply, you receive a share of the inheritance but you must also pay the deceased’s debts up to the limit of your inheritance rights (you receive ¼ of the inheritance, you pay ¼ of the debts). (Article 1320 of the Civil Code)

If you discover that the debt is substantial, you can apply to the court to be relieved of all or part of it. In this case, 2 conditions must be met:

• There must be legitimate reasons for not knowing about the existence of the debt at the time of acceptance of the succession.
• payment of the debt is likely to cause serious damage to your estate

The case must be referred to the court within 5 months of the day on which you became aware of the debt.

When you accept the estate purely and simply, you can no longer renounce the estate or accept it up to the amount of the net assets.

• In the case of a minor heir

The inheritance option belongs either to the parent(s) with parental authority or to the guardian with the agreement of the family council if the minor is under guardianship.

Authorisation must be sought from the family affairs judge acting as guardianship judge for minors to accept the inheritance on behalf of the minor. The application must be made using a form available on the public service website.

The application must be submitted or sent to the clerk’s office of the family court judge acting as guardianship judge for minors at the court of the heir’s place of residence.

Note: If the minor is under guardianship, the authorisation of the juvenile guardianship judge may replace the authorisation of the family council if the value of the assets is less than €50,000.

On receipt of the Jaf’s authorisation decision, the person in charge may simply accept the estate on behalf of the minor.

• If the heir is a protected adult

• Adults under guardianship

The guardian of an adult under guardianship who is the heir may accept the estate purely and simply without the judge’s authorisation if the value of the estate’s assets is clearly greater than the amount of the estate’s debts. To do this, the guardian must obtain a certificate from the notary responsible for settling the estate.

In other cases, an application for authorisation to accept the estate outright must be submitted to the protection litigation judge using a form available on the public service website. The application must then be submitted or sent to the clerk’s office of the protective litigation judge at the court of the protected adult’s place of residence.

On receipt of the judge’s authorisation decision, the guardian may simply accept the estate on behalf of the adult under guardianship.

• Adults under guardianship

It is not necessary to seek the authorisation of the Protection Litigation Judge for the outright acceptance of an estate by an adult under guardianship. An adult under guardianship may simply accept the estate with the assistance of his or her guardian.

• Adults under family guardianship

The authorised person of a protected adult who is an heir must complete an application for authorisation to accept the succession outright from the Protection Litigation Judge using a form available on the public service website. The application must then be sent or lodged with the clerk of the Protective Disputes Judge at the court of the protected adult’s place of residence.

Once authorisation has been received, the authorised person may simply accept the estate in the name of the adult under family supervision.

Outright acceptance can take 2 forms: express or tacit.

Express: in writing. It can be done by private deed or notarial deed.

Tacit: the intention may be revealed by certain actions or steps. For example, when you sell an item that is part of the estate, this constitutes tacit acceptance. However, not all acts constitute acceptance, such as paying the house insurance or collecting the rent.

2. Acceptance up to the amount of the net assets(articles 787 to 803 of the Civil Code)

Acceptance up to the value of the net assets means that the heir does not pay debts that exceed the value of the deceased’s property. The heir’s personal assets are protected.

When you accept the succession up to the value of the net assets, you can no longer renounce the succession. On the other hand, you may accept the succession purely and simply if you find that the value of the assets transmitted exceeds the debts.

• In the case of a minor heir

The choice of inheritance option is made either by the parent(s) with parental authority or by the guardian, with the agreement of the family council if the minor is under guardianship.

• In the case of a protected adult heir

The heir makes the declaration of acceptance of an estate “up to the amount of the net assets” in the case of curatorship or family habilitation. In the case of guardianship, this declaration must be made by the heir’s guardian.

Note: if some heirs have accepted the succession purely and simply and others have accepted up to the amount of the net assets, the rules on acceptance up to the amount of the net assets apply to all the heirs until the day on which the property of the succession is divided.

When you decide to accept the estate up to the amount of the net assets, you must make a declaration (a), draw up an inventory (b) and settle the debts (c).

1. The declaration

The acceptance must be declared up to the amount of the net assets, either on plain paper or using a form.

1. For estates opened after October 2017

The declaration of acceptance up to the amount of the net assets may be sent or filed either with the clerk of the court of the deceased’s last domicile or with the notary.

The declaration must be published in the Bodacc, so that the deceased’s creditors can be informed. The publication fee of 16 euros is payable by the estate. In addition, a notice must be published in a legal gazette within one month of the declaration being filed with the court clerk’s office. The newspaper provides a certificate of publication or a copy of the newspaper, which is needed to prove publication and to carry out other formalities.

1. For successions opened before October 2017

The same process must be followed, but the declaration can only be filed or sent to the registry of the court of the deceased’s last domicile.

1. The inventory

You should ask a notary or a court commissioner to draw up an inventory of the estate. This enables an estimate to be made of the deceased’s assets and debts.

It must be filed with the court clerk’s office within 2 months of the declaration of acceptance. An extension may be granted by the judge.

CAUTION: If the inventory is not filed within the deadline, the heir is deemed to have accepted the estate outright.

The court clerk’s office publishes the inventory in the Bodacc. This publication is used to inform the deceased’s creditors. The costs of publication are borne by the estate and must be paid in advance.

Creditors and legatees of sums of money may consult the inventory and obtain a copy.

1. Settlement of debts

From the date of publication of the declaration, creditors have 15 months to claim what belongs to them. They must notify their claim to the domicile of the heir accepting the estate or the notary responsible for settling the estate.

Within the same 15-month period, it is possible to retain or sell the assets of the estate.

It is also possible to ask the judge to appoint an agent to manage the estate assets and settle the debts on your behalf.

3. Renunciation (articles 804 to 808 of the Civil Code)

If an heir renounces the succession, he is deemed never to have been an heir.

If you renounce the succession, you can change your mind and accept it outright. 2 conditions must be met:

• Another heir (or the state) must not have accepted the succession in the meantime.
• The succession must be accepted within 10 years of its opening.

• In the case of a minor heir

The choice of inheritance option is made either by the parent(s) with parental authority or by the guardian, with the agreement of the family council if the minor is under guardianship.

Renunciation of the succession in the name of a minor requires the authorisation of the family affairs judge acting as guardianship judge for minors. An application must be completed, which can be found on the public service website, and then submitted or sent to the clerk’s office of the Jaf exercising the functions of the juvenile guardianship judge of the court in the place of residence of the person in charge. On receipt of the authorisation, the person in charge may renounce the succession in the minor’s name by making a declaration of renunciation.

Note: If the minor is under guardianship, the authorisation of the juvenile guardianship judge may replace the authorisation of the family council if the value of the assets is less than €50,000.

• In the case of a protected adult heir

• Major under guardianship

The guardian must apply to the Protection Litigation Judge for authorisation. This must be submitted or sent to the clerk’s office of the protection litigation judge at the court of the protected adult’s place of residence.

Once the authorisation has been received, the guardian must complete the declaration of renunciation of the succession.

• Under curatorship

An adult under guardianship completes a declaration of renunciation of inheritance without seeking the authorisation of the judge responsible for contentious matters relating to the protection of the estate.

• Adults under family guardianship

The authorised person of an adult placed under family guardianship must request authorisation from the Protection Litigation Judge. The application must be filed with or sent to the clerk’s office of the family protection judge in the place of residence of the protected adult. Once authorisation has been obtained, the authorised person must make a declaration of renunciation of the succession.

For estates opened after October 2017, a declaration must be completed using a form. It must be sent to or lodged with the clerk of the court of the deceased’s last domicile or with a notary.

For estates opened before November 2017, a declaration must also be completed using a form, but it must be sent to or lodged with the registry of the court of the deceased’s last domicile.

How is heir status determined?

1. Proof of heirship

Article 724 of the Civil Code: ” The heirs designated by law are automatically seized of the property, rights and actions of the deceased.

Universal legatees and donees shall be seized under the conditions set out in Title II of this Book.

If they fail to do so, the estate is acquired by the State, which must be sent to take possession.

To inherit, you must exist at the time of death and not be unworthy.

Article 725 of the Civil Code : ” To inherit, a person must exist at the time the succession is opened or, having already been conceived, be born viable.

A person whose absence is presumed in accordance with Article 112 may succeed.

Article 726 : ” The following are unworthy to succeed and, as such, are excluded from the succession :

1° Any person who is sentenced, as perpetrator or accomplice, to a criminal penalty for having voluntarily caused or attempted to cause the death of the deceased ;

2° A person who has been sentenced, as perpetrator or accomplice, to a criminal penalty for having wilfully struck or committed violence or assault resulting in the death of the deceased without intent to kill.

Article 727: ” The following may be declared unworthy to succeed :

1° Any person who is sentenced, as perpetrator or accomplice, to a correctional penalty for having voluntarily caused or attempted to cause the death of the deceased ;

2° A person who is sentenced, as perpetrator or accomplice, to a correctional penalty for having wilfully committed violence resulting in the death of the deceased without intent to cause it;

2° bis Anyone who has been sentenced, as perpetrator or accomplice, to a criminal or correctional penalty for having committed torture and acts of barbarism, deliberate violence, rape or sexual assault against the deceased;

3° Anyone convicted of giving false testimony against the deceased in criminal proceedings;

4° Anyone convicted of having voluntarily refrained from preventing either a crime or an offence against the bodily integrity of the deceased, resulting in death, when he could have done so without risk to himself or to third parties;

5° A person who is convicted of slanderous denunciation against the deceased when, for the facts denounced, a criminal penalty was incurred.

Those who have committed the acts mentioned in 1° and 2° may also be declared unworthy of succession and in respect of whom, due to their death, public proceedings could not be brought or have been extinguished.

Article 727-1: ” The declaration of unworthiness provided for in article 727 is pronounced after the opening of the succession by the judicial court at the request of another heir. The application must be made within six months of the death if the decision of conviction or finding of guilt was made prior to the death, or within six months of this decision if it was made after the death.

If there is no heir, the application may be made by the public prosecutor.

Article 728: ” An heir affected by a ground of unworthiness provided for in articles 726 and 727 is not excluded from the succession where the deceased, after the facts and the knowledge he had of them, has specified, by an express declaration of will in the form of a will, that he intends to maintain him in his hereditary rights or has made him a universal or universal gift. ”

Article 729 : ” An heir excluded from the succession by reason of unworthiness is obliged to return all the fruits and revenues which he has enjoyed since the opening of the succession “.

Article 729-1: ” The children of an unworthy person are not excluded by the fault of their author, either if they come to the succession in their own right or if they come to it by the effect of representation; but an unworthy person may not, in any case, claim, over the property of that succession, the enjoyment which the law grants to fathers and mothers over the property of their children. ”

In order to be an heir, you must also provide proof of that status, which can be established by any means. The purpose of proving heirship is to determine who is entitled to inherit so that the estate can be settled safely. It also ensures that the rights of reserved heirs are respected (article 912 of the Civil Code).

Article 730 CC: “Proof of heirship is established by any means.

No derogation shall be made from the provisions or practices concerning the issue of certificates of ownership or inheritance by judicial or administrative authorities.

Practice has developed a custom in requesting the death certificate of the deceased.

Succession by will makes it easier to prove heirship, since it is sufficient to produce the will instituting the heirs in order to prove their status.

Legal succession is based on ties of kinship or marriage, which can make it more difficult to prove heirship. This proof may be derived from birth certificates, marriage certificates or any other legal document that establishes the relationship with the deceased.

Article 731 CC : ” The succession devolves by law to the parents and spouse of the deceased who are entitled to inherit under the conditions defined below “.

1. The deed of notoriety

The complexity of proving parentage has led to the development of the “acte de notoriété” technique. To obtain a notarial deed, the heir must produce proof of identity, the deceased’s family record book and proof of death.

If the heir is related by marriage, the notary may ask for the marriage contract and a document certifying that there is no will. A notarial deed is only necessary if the heirs are not designated by a valid testamentary deed, which takes precedence over any other document instituting successors (Cass. Civ.^1ère 12 February 2020/ n°19-11.668).

It also mentions gifts mortis causa that may have an impact on the devolution of the estate. These will include universal or universal bequests, but not specific bequests. The deed of notoriety must be mentioned on the death certificate (CA Reims, Ch. Civile 01 sect. II 18 May 2018, n°17/02571).

A deed of notoriety confers only a simple presumption of heirship.

Article 730-3 CC : ” The deed of notoriety thus established is authentic until proven otherwise.

The person who relies on it is presumed to have hereditary rights in the proportion indicated therein “.

If the status of an heir is contested, it is the person contesting the status of heir who must prove the defect. A deed of notoriety confers the appearance of heirship on its beneficiaries with regard to third parties.

Article 730-4 of the Civil Code : ” The heirs designated in the deed of notoriety or their joint representative are deemed, with regard to third parties holding property of the succession, to have free disposal of this property and, if it is funds, free disposal of them in the proportion indicated in the deed “.

2. The inventory heading

The inventory heading is “the preamble to the inventory in which the identity, capacity and extent of the succession of the persons requesting the inventory are specified. This document can thus be used by the interested parties as a supporting document when they have to prove their status as successors “. (Dalloz Droit patrimonial de la Famille)

The inventory is part of the deed of succession containing the inventory of the deceased’s assets. It may be drawn up by a notary, but also by an auctioneer or bailiff (commissaire de justice), at the request of the heirs.

At the beginning of the deed, the public official indicates which heirs have requested that the inventory be drawn up. After verification, the preamble mentions the status (exact relationship of the heir or universal or universal legatee) and inheritance rights of the interested parties.

It has the same effects as the deed of notoriety. It establishes a simple presumption of heirship, but also of apparent heirship, with regard to third parties (Cass. Civ. 1ère, 17 April 2019, no. 18-16293).

3. Certificate of inheritance

This is a certificate of ownership of movable property in the estate. It may be drawn up by the mayor, the notary or a single judge, at the request of an heir in the case of small estates with no real estate.

It enables possession to be taken of public or private debts or registered securities (shares, bonds, government annuities) without the need for costly documents such as a deed of notoriety or an inventory.

It gives heirs the status of heir apparent, but its effects are limited to the recovery of the assets whose ownership it certifies.

It can only be issued for estates not exceeding a lump sum of €5,335 and not containing any real estate. Most of the time, the mayor refuses to issue the certificate, as he has only the power to do so.

It was against this backdrop that, in 2015, the legislature introduced “a simplified method of proving the status of heir, the attestation of all the heirs for modest estates, in order to enable the estate’s liabilities to be settled and the sums held in the deceased’s bank accounts to be collected, up to a limit of 5,000 euros revalued annually in line with the INSEE consumer price index excluding tobacco ” (C. mon. fin, art. L. 312-1-4; Arr. of 7 May 2015, NOR: FCPT1508536A).

1. Proof of heirship during legal proceedings

It may be necessary to establish one’s status as an heir in legal proceedings. When the status of an heir is contested, the plaintiff in the action will have to prove that he is closer to the deceased than the heir whose status he is contesting.

This action is called an “action en pétition d’hérédité”. It is necessary when certain assets of the estate are in the possession of a third party who refuses to hand them over to the heirs because he considers himself to be an heir in their place. The heirs then take action to have their status as heirs recognised.

This action is defined by Dalloz Action patrimoniale de la Famille as the action ” by which an heir, whoever he may be, universal or universal successor, legatee, or contractual institute, seeks to have his status recognised against a third party holder of hereditary property who claims to be entitled to it also as successor. The subject of the dispute is the devolution of the succession, the status of universal successor and the ownership of hereditary property that is linked to it ” (Dalloz Action Droit patrimonial de la famille – Chapter 249 – Proof of the status of heir – Christophe Vernières; Michel Grimaldi – 2018-2019).

The aim is to be recognised as an heir in the place of another. No text regulates this action. Over time, certain rules have become established in practice.

In the case of legal succession, to exercise the right of recourse, the person must prove his or her relationship to the deceased to a judge.

In the case of voluntary succession, rights are proven by producing the will. Successful action has two types of effect:

• Effect between the parties: the defendant is obliged to return all the estate assets to the true heir.

If the heir is acting in good faith, he will be required to return the property without being liable for any damage to it, but he will be able to retain the income he has received from it until the action is brought. If the property is disposed of, the heir will only have to return the sale price.

If he is acting in bad faith, he must not only return the property in the state in which it was, being responsible for its deterioration, but also the related income. In the event of alienation, he must return the value of the goods and not the sale price.

• Effect with regard to third parties to the estate: third parties are protected from this type of action and are not liable for the heirs’ wrongful determination.

For the acquisition of movables, they benefit from the protection of article 2276 of the Civil Code, which states that “possession is equivalent to title”. The mere physical possession of the property by a third party is deemed to be an act of ownership, until proven otherwise.

For the acquisition of a property, third parties acting in good faith benefit from the protection of the theory of the apparent heir, if they have acquired the property for valuable consideration from a holder who had the appearance of being the successor to the deceased owner of the property.

How does the notary go about finding the heirs?

Through the will, through official documents provided by relatives of the deceased, such as the family record book, marriage certificate, etc. If the amount of the estate is sufficient, the notary can call on genealogists to find heirs on several levels.

From the time of death until the estate is settled, who represents the heirs? Joint ownership? Notary?

When there are several heirs, each is seized for the entire estate until it is divided, and not just for the rights to which he or she may be entitled.

The heirs may appoint an agent to manage the estate. The mandatary may be one of the heirs or a completely different person, in which case it is known as a conventional mandate. If there is a blockage in the settlement of the estate, or if an heir has accepted the estate up to the amount of the net assets, he may be appointed by the judge. This is known as a judicial mandate of succession. (See below for appointment, role and duration).

Otherwise, each heir represents himself in the succession.

How are heirs identified?

Either by law or by will.

1. Legal devolution

Where no will has been made, article 734 of the Civil Code providesthat the succession follows a particular order.

The heirs who are to receive the deceased’s property are the spouse and the family. The spouse entitled to inherit is the surviving undivorced spouse (article 732 CC). The family is classified into four orders: the children of the deceased, the parents and siblings of the deceased, ascendants other than parents, and collaterals such as uncles, aunts, cousins. Each order excludes the next.

There is a principle of representation in inheritance: articles 751 et seq. of the Civil Code allow representation in inheritance. This is a legal fiction which allows an heir, if deceased =, to be represented by his descendants. Thus, if the children of the deceased are deceased, the grandchildren of the deceased may be bequeathed property.

The heirs are then ranked in order of degree of kinship. The rule of proximity of degree prevails. Heirs of the same degree will have an equal share in the estate.

1. Will

The estate can be distributed differently when the deceased decides to draw up a will. A will is a legal document that provides for the distribution of assets among the various legatees. It can be modified or revoked at any time before death(article 895 of the Civil Code). The person must be of sound mind at the time the will is drawn up(article 901 of the Civil Code). Minors under the age of 16 and adults under guardianship are excluded.

The will may be holographic, i.e. drawn up by the testator alone. Article 970 of the Civil Code specifies that to be valid, it must be written in full by hand, dated and signed by the testator. This means that the testator cannot dictate his will to another person. “The testator’s handwriting must be recognisable, despite any signs of material assistance that a third party may have provided. (Cass. Civ.^1ère, 15 June 2017, n°16-21069). It is not subject to any formal conditions.

The will may also be authentic. Articles 971 et seq. set out the terms and conditions of an authentic will. The will is authentic when it is dictated before a civil law notary and two witnesses or before two civil law notaries. It must then be signed by the testator as well as the notary or notaries and any witnesses. The notary keeps the will and records it in the central file of last wills and testaments.

Article 1002 of the Civil Code distinguishes between three types of potential legacy:

• a universal legacy, whereby all the property is bequeathed to one person, who is then called the universal legatee
• A universal legacy, whereby a specified proportion of the property, such as half of the property, or a category of property, is bequeathed to a person.
• A bequest by particular title, whereby a specific asset is bequeathed to a specific person, known as the legatee by particular title.

In principle, the testator is free to choose the beneficiaries of the succession. However, this freedom is limited. It is not possible to disinherit one’s descendants or spouse entirely if the deceased leaves no descendants. This is known as the hereditary reserve. Article 913 of the Civil Code provides that half the estate is reserved for the only child, two-thirds is reserved if there are two children and three-quarters if there are three children. Article 914-1 of the Civil Code reserves a quarter of the estate for the surviving spouse where there are no descendants. The portion not covered by the inheritance reserve is known as the available portion. The testator may dispose of it freely.

How are the deceased’s assets determined?

The partitionable estate comprises the assets existing at the opening of the succession, or those that have been subrogated to them, and which the deceased did not dispose of by reason of death, as well as the related fruits.

It is increased by the values subject to ratio or reduction, as well as the debts of the co-sharers to the deceased or to the joint ownership.

If there is joint ownership, what happens if there is no agreement and how can this be remedied? Agent?

Before partition, if the heirs are unable to reach agreement, they will resort to judicial partition (see below).

Article 815-4 of the Civil Code states: ” If one of the undivided co-owners is unable to express his or her will, another may be authorised by the court to represent him or her, either generally or in respect of certain specific acts, the conditions and scope of such representation being determined by the court. In the absence of legal power, mandate or authorisation by the court, acts performed by one undivided co-owner in representation of another have effect with regard to the latter, in accordance with the rules of business management “.

In this case, another undivided co-owner may apply to the Court of Justice for authorisation to represent the undivided co-owner who is unable to express his or her wishes. The court will have to authorise the representation of the undivided co-owner to the extent it sees fit: a single act, several acts, etc. In short, one of the undivided co-owners will give his or her consent in place of the one who is unable to do so. The latter will, however, be a party to the deed.

After partition, if he decides to remain in joint ownership …

How is joint ownership represented in court ?

Joint ownership is the legal situation of several people who jointly hold a right of the same kind in the same property or group of properties, without there being any material division of their shares.

A form of multiple ownership, it is characterised by the fact that each undivided co-owner exercises private rights over an abstract fraction of the property, known as a share, and rights competing with those of the co-owners over the property itself. As exclusive owners of their undivided share, undivided co-owners may dispose of it freely and may take legal action to have their undivided co-ownership rights recognised.

While undivided ownership may appear in some respects to be a personified grouping, particularly through the emergence of a common interest, the application of the majority rule to the management of undivided property and to its disposal after judicial authorisation, and the existence of common assets and liabilities, the law does not give it legal personality. It is not a subject of law. For example, a lease entered into in the name of an indivision is absolutely null and void. It cannot have the right to take legal action.

Therefore, a deed issued in the name of an undivided co-ownership is affected by a substantive irregularity that renders it null and void if it is not rectified. An action relating to undivided property brought against a single undivided co-owner is admissible, but the decision rendered in respect of that action cannot be set up against the other undivided co-owners unless they are joined as defendants.

What is the difference between a mandatary and an administrator of an estate?

1. The estate mandatary

The mandatary of an estate is a natural or legal person who is responsible for the temporary administration and management of all or part of a person’s estate on behalf of and in the interest of one or more of the person’s heirs.

An estate agent is often needed if one of the heirs has been placed under reinforced guardianship.

Who can appoint an estate agent?

Any person who can demonstrate a legitimate and serious interest in one or more heirs or in the estate’s assets may appoint an estate agent by means of a mandate with posthumous effect.

The heirs may decide by mutual agreement to entrust the administration of the estate to one of them or to a third party. This is known as a conventional mandate. The mandate takes the form of an agreement between the heirs.(Article 813 of the Civil Code)

In the event of inertia, failure or fault on the part of one or more heirs in the administration of the estate as a result of disagreement, conflicting interests or the complexity of the situation, the judge may appoint an estate agent. This is known as a mandataire judiciaire.(Articles 813-1 to 814-1 of the Civil Code)

Who can be appointed?

One or more natural persons or legal entities may be appointed as an estate agent.

One or more heirs may be appointed as mandatary of the succession. However, the notary in charge of the estate cannot be appointed as the mandatary of the succession under a posthumous mandate.

Under this mandate, the heirs may appoint any person of their choice or one of their number.

When the judge appoints a mandatary because of a complex estate in which there is a deadlock, or when one of the heirs has accepted the estate up to the amount of the net assets, the term “mandataire successoral judiciaire” is used. It is the judge who appoints a person to manage the estate.

The judge appoints a mandataire successoral at the request of a creditor, one of the heirs or the public prosecutor. Any other person with a legitimate interest may also make the request. The request may be made for the following reasons: disagreement between the heirs, inertia, fault in the management of the estate.

Note: the posthumous mandate by which the successoral agent is appointed must take the form of a deed signed before a notary. It must be accepted by the agent before the death of the principal.

How is the mandate drawn up?

If you wish to appoint a posthumous representative, you can appoint a lawyer, a notary, a chartered accountant or a court commissioner. This is particularly useful when the estate is substantial.

A posthumous power of attorney is an authentic instrument, so a notary is required.

The conventional mandate takes the form of a private deed or deed signed before a notary.

It may also take the form of a court order.

What does the mandatary do?

• Mandataire successoral conventionnel

He must manage and administer the estate. They are accountable for their management.

• Mandataire successoral judiciaire

The judge will draw up a list of the acts that the legal representative of an estate may carry out (dispositive acts or only protective acts).

He or she may be tasked with acts of supervision or acts of provisional administration of the estate (renewal of leases, continuation of professional activity in the case of a business). He may even be responsible for dividing up the estate.

He may also, on his own initiative, ask the judge for authorisation to perform a particular act if the circumstances so require.

How long does the mandate last?

Under the posthumous power of attorney, the liquidator is appointed for a maximum of 2 years, which may be extended once or several times by court order. If it is justified by the incapacity or age of the heirs or the need to manage professional assets, the duration of the mandate may be up to 5 years and may be extended by court order.

Where the mandatary of the succession has been appointed by agreement between the heirs, the term is set by the agreement.

In the case of a court-appointed estate agent, the term of office is set out in the appointment order.

It automatically ends :

• On expiry of the term of office
• On renunciation of the mandate by the agent
• On the sale of all the estate’s assets
• On the signing of an indivision agreement between the heirs
• The appointment of a notary to settle and divide the estate
• By court order

1. The estate administrator

The administrator must act in the common interest of the joint ownership. His powers are defined either by the judge in the court decision appointing the provisional administrator, in order to adapt his powers to the specific needs of each joint ownership, or by application of articles 1873-5 to 1873-9 of the Civil Code relating to joint ownership by agreement.

1. The powers of the provisional administrator

Articles 1873-5 to 1873-9 of the Civil Code apply as far as is necessary when the powers of the provisional administrator are not defined, but there is nothing to prevent the court from extending them.

Provisional administration of the undivided property(article 1873-6 CC): he manages the undivided property. He manages the undivided property both actively and passively. He may collect rent and must pay the undivided property’s liabilities. However, he may only dispose of tangible movable property for the purposes of the normal operation of the undivided property or if it is difficult to preserve it.

Representing the undivided co-owners(article 1873-6 CC): the provisional administrator represents the undivided co-owners in civil acts and legal actions, both as plaintiff and defendant, including actions affecting the substance of the right, such as actions for recovery. He may take legal action within the limits of the powers set by the court. Purely personal actions are excluded from his remit. He does not have the right to act without the agreement of the undivided co-owners.

He may request special authorisation from the judge for acts that he deems necessary and that exceed his powers. His mission may be modified during his term of office.

1. Rights and obligations

He must carry out his mission. He must comply with the instructions given by the judge. He must act with diligence and remain loyal to the undivided co-owners.

The administrator is in contact with the heirs. The undivided co-owners must cooperate with the provisional administrator by providing him with all the documents he needs to carry out his duties. He may summon them to be informed and heard. The undivided co-owners may consult the documents relating to the performance of the mission at any time. They may ask for the appointment to be revoked.

The provisional administrator is required to inform the undivided co-owners and the judge of the progress of the assignment. He or she draws up a report in which he or she explains the actions taken, the progress made and the difficulties encountered.

The provisional administrator is under the supervision of the judge throughout the duration of the assignment.

He may incur civil and criminal liability in the event of misconduct. They may also be removed from office and replaced in the event of serious misconduct.

Can the heirs remain in joint ownership or do they have to liquidate the estate? If there is joint ownership, what happens when it comes to deeds transferring ownership?

Prior to the division of the estate, the heirs are joint owners of the deceased’s property. The rules set out in articles 815 et seq. of the Civil Code apply. An indivision agreement may be concluded between the various heirs to facilitate the rules governing the operation of the indivision. The heirs own the property jointly and have a share in it.

Indivision ends with the division of the estate, which may be amicable or judicial (articles 816 et seq. of the Civil Code). This division can always be provoked, even if the inheritance assets are of little importance. Each heir receives his share of the inheritance and becomes the owner of it individually.

1. Amicable division

1. Conditions

In principle, amicable division assumes that all the heirs agree to end the indivision.

If an heir refuses to take part in the division, the other heirs may require him, by deed of the court commissioner, to appoint a person of his choice to take part in the division in his place.

If one of the heirs is a minor or a protected adult, or if he has not given any sign of life, amicable division is possible, but under special conditions.

Article 507 of the Civil Code provides, by a reading a contrario, that the right to participate in an amicable division is exercised by the guardian of the adult under protection, without any authorisation being required. It is only in the event of conflicting interests with the person in charge of the protective measure that authorisation from the family council or the judge is required to proceed with an amicable division. Prior authorisation for partition operations has therefore been limited to situations where there is a conflict of interest in the partition. This is verified by the notary in charge of the operations.

However, the liquidation statement is still subject to approval by the family council or the judge. Not all cases have been diverted from the courts since the reform of the justice system on 23 March 2019.

As a reminder, a notary is required if the estate includes real estate.

1. Realization

Partition consists of allocating property to each heir for a value equal to their rights in the joint ownership.

The heirs make up lots corresponding to the rights of each. They divide the lots among themselves by mutual agreement or by drawing lots. The lots may be of unequal value, provided that a balance is paid to the heirs concerned.

Amicable division may be total or partial. It is partial when indivision continues in respect of certain property or certain persons.

At the time of partition, certain heirs may ask to be given priority in the allocation of certain assets of the deceased: this is known as preferential allocation. This can include housing, vehicles and businesses. The surviving spouse, or the heir who was living in the property at the time of the death and who continues to reside there, may apply for preferential allocation of the home and its furnishings.

1. Cost

In the event of a division established by a notarial deed, fees are payable.

Table: Notaries’ proportional fees for the division of estates from January 2021 ;

Other costs may be added, such as fees and disbursements.

In addition, a tax known as partition duty is payable in certain cases of partition between co-heirs. The tax authorities deduct a percentage from the value of the estate.

Tax break: Outright divisions

1. Scope of application of partition duty or land registration tax

1. Principles

Article 647 of the French General Tax Code (CGI) provides that divisions of immovable property are subject to the merged formality carried out by the relevant land registration department and to land registration tax, which includes registration fees.

The same applies to divisions involving both movable and immovable property.

Deeds recording partition of movable property only are subject to registration within one month of their date.

1. Exceptions

1. Sharing of mutual funds and units of real estate investment trusts

Pursuant to article 749 of the CGI, redemptions of units in fonds communs de placement (FCP) and units in fonds de placement immobilier (FPI), as well as the distribution of the assets of these funds among the holders, after the dissolution of the fund, are exempt from the registration duty or land registration tax provided for in article 746 of the CGI.

It is also accepted that the exemption from duty is coupled with an exemption from the formality in cases where it would normally be compulsory.

When the holder of units in a real estate investment trust falls into one of the cases mentioned in a and b of article 730 quinquies of the CGI, registration duty at the rate set in 2° of article 726 of the CGI is applicable. However, this registration duty does not apply when the holder requesting redemption of the units is itself an undertaking for collective real estate investment (article 749 al.2 CGI).

2. Division of co-owned properties

Article 749 A of the GCI stipulates that the division of buildings, groups of buildings or property complexes subject to Act no. 65-557 of 10 July 1965, as amended, laying down the rules governing co-ownership of buildings, and the resulting redistribution of common areas are exempt from registration duty or land registration tax as provided for in article 746 of the CGI.

3. Division of an estate involving property located in Corsica

In order to facilitate the settlement of joint inheritances involving real estate located in Corsica, article 750 bis A of the CGI provides for a temporary exemption from partition tax up to the value of the real estate located in Corsica on inheritance partition deeds drawn up between¹ January 1986 and 31 December 2014, when they are made solely between the original members of the joint inheritance, their spouse, ascendants, descendants or universal beneficiaries of one or more of them.

The exemption applies regardless of the place of death or domicile of the deceased or the parties to the deed. It is limited to the value of property located in Corsica.

Partition duty remains payable on the other property involved in the partition.

The exemption from partition tax applies provided that the deed recording the partition is authentic and specifies the references of the text providing for the exemption (article 750 bis A CGI).

4. Conversion of a company or organisation placed under the partnership regime defined in articles 8, 8 bis and 8 ter of the CGI into an association of lawyers

Under the terms of article 749 B of the CGI, the conversion operations mentioned in the first paragraph of article 151 octies C of the CGI are exempt from the registration duty or land registration tax provided for in article 746 of the CGI.

In addition, the conversion decision must be registered with the department responsible for registration at the fixed rate for unnamed deeds provided for in article 680 of the CGI within one month of its date(articles 635, 1-5° and 638 A of the CGI).

5. Sale of undivided property and clauses relating to the sharing of the price

Partition duty is normally payable on a deed of sale of undivided property containing clauses relating to the division of the sale price. However, as a temporary measure, the authorities have decided to waive the levying of this duty.

In principle, partition duty is payable on the part of the sale price that is not paid in cash or similar assets and immediately divided between the sellers in accordance with their respective rights. However, as a mitigating measure, inspired by a concern for simplification and reduction, it is accepted that this duty will no longer be claimed, in future, on contracts for the sale of undivided property containing clauses relating to the sharing of the price (RM Beauguitte no. 4813, JO AN of 18 May 1960, p.909).

In this case, no sharing duty is required from the administration if the sale is subsequently mentioned in a new deed such as an agreement or divorce decree.

1. Rates and conditions for payment of partition tax

1. Tariff

The rate of land registration tax or registration duty applicable to outright divisions is set out in Article 746 of the CGI. The standard rate is 2.5%.

1. Conditions of liability

Four conditions must be met in order to pay the land registration tax or registration duty resulting from 7° of 1 of article 635 of the CGI and article 746 of the CGI

1. Existence of a deed

There must be a deed recording the division for proportional taxation to be due. In fact, the provisions of article 635, 1, 7° of the CGI only make deeds recording a division subject to compulsory formality. It follows that a verbal division is not subject to compulsory formality.

However, where the joint owners declare in a deed that their rights have previously been fully or partially fulfilled by means of a verbal division, the division tax is due on the property previously divided.

For example, the tax authorities have demanded that partition tax be paid on a notarised certificate relating a rural reorganisation and the distribution of the new property among the beneficiaries of the predeceased contributor, since this deed must be considered as forming the title to a previous verbal agreement.

2. Existence of joint ownership between the co-partitioners

Next, there must be undivided ownership between the co-partitioners. It is therefore necessary for there to be genuine joint ownership between the parties, i.e. a right of ownership enjoyed by several people over one and the same thing, which belongs to each of them only for a proportion or share.

Article 746 of the CGI makes all shares “in any capacity whatsoever” subject to partition duty. There is therefore no need to worry about the origin of the joint ownership(s) from which the assets included in the division originate (jointly acquired assets, assets acquired by inheritance or gift, etc.).

However, the origin of the joint ownership is taken into account when determining the basis of assessment and the applicable tax rate.

In addition, it is important that this joint ownership subsists at the time of the partition and has not previously disappeared for any reason whatsoever.

Consequently, when property already divided by formal deed is included in a partition, it should be disregarded for the purposes of calculating the tax. The allotment of previously shared property to someone other than the apparent owner constitutes a sale or an exchange, depending on whether the previous allottee receives money or other property in replacement.

In the absence of indivision, the deed must be subject to transfer tax for valuable consideration. For example, there is no indivision between the owner of the land and the owner of the surface area; the allocation of one of these elements to the owner of the other therefore constitutes an ordinary sale.

Nor is there indivision between the sole owner of a plot of land and the builder of a building on that land, even if the owner and builder are spouses.

Similarly, if buildings are erected on land that is divided between the builders, the buildings do not become undivided property.

The situation would be different if the building had been built jointly by the undivided owners of the land, and the deed granting joint ownership of the property would be subject to partition tax.

Finally, there is no joint ownership between the usufructuary and the bare owner of the same property, as each of them has a private right to the property.

As a result, in principle, the deed by which the usufructuary relinquishes all or part of his usufruct to the bare owner and in return receives a share of full ownership constitutes an exchange and not a division.

However, there are many exceptions to this rule. In particular, it is accepted that the conversion of a spouse’s legal usufruct into full ownership could, in certain cases, be analysed as a simple sharing transaction taxable as such.

Similarly, under article 917 of the Civil Code (C. civ.), the surrender of ownership of the available portion in exchange for a usufruct legacy exceeding the available portion does not constitute a transfer and is only liable to partition tax.

Finally, although there is no indivision between the usufructuary and the bare owner of the same property, transfers of successive rights or licitations in usufruct or bare ownership in favour of heirs, legatees or donees who are bare owners or usufructuaries of the same property are subject to land registration tax or registration duty at the rate provided for in II of Article 750 of the CGI.

3. Proof of joint ownership

The law also requires that joint ownership be justified. It is up to the parties to provide proof of co-ownership of the values included in the partition, unless the administration wishes to verify or contest it. Such proof may be provided by any means compatible with the written procedure.

It may thus result from statements in the deeds themselves, regularly kept business books, registers, notes and domestic papers and serious, precise and concordant presumptions.

It is also acceptable for evidence to be based on plausible and uncontradicted statements by the parties, supported, where appropriate, by family documents or expert reports ordered by the court.

The parties must also justify, under the same conditions, the rights of the co-partitioners in order to enable the administration to ensure that the allocations made to them are in accordance with their rights and that the division does not involve an increase in value from one lot to another.

In the absence of sufficient evidence, either of the rights of the parties, or of the joint ownership of certain assets, it is necessary to disregard both, to determine the rights of the joint owners to the common assets whose joint ownership is justified, and to levy balancing duties on the resulting capital gains for certain lots, except in the case of a division of an estate, a marital community, joint ownership between spouses or between partners linked by a civil solidarity pact, or joint ownership resulting from a shared gift benefiting from the preferential regime, and transfer tax for valuable consideration on lots allocated to co-owners who are not joint owners.

4. Existence of a genuine sharing transaction

Lastly, proportional taxation may only be required if the deed submitted for formality constitutes a genuine division, i.e. transforms the abstract and general right of each co-partitioner over the joint estate into an exclusive right of ownership over the assets included in his or her lot.

It is not due, therefore, on deeds that merely establish the rights of the parties without making private allocations.

Such deeds preparatory to partition can only give rise to the fixed duty for unnamed deeds. But proportional taxation is due without the actual apprehension of the lots taking place.

• Assessment and liquidation of partition tax

1. Principle of liquidation on the amount of the shared net assets

Under the terms of article 747 of the CGI, partition tax is calculated on the basis of the net assets shared, i.e. the combined gross assets of the French and foreign assets, less the liabilities of the undivided estate.

Partition tax is payable on foreign assets because it is not a duty on a transfer, partition being considered under French law as a declaratory act.

In the case of inheritance divisions, it applies to gifts made in kind or in lesser amounts (gifts made in advance of an inheritance share) and, in all divisions, to debts.

On the other hand, it does not apply to notional distributions made under article 922 of the Civil Code for the purpose of calculating the available portion, either in respect of gifts made to renouncing heirs or to strangers, or in respect of gifts made outside the inheritance to persons entitled to inherit. However, if the gift exceeds the available share, the report of the excess, after reduction, made by a stranger or a successor, effectively enters into the mass to be shared and must bear the sharing tax.

It is also due on the reinstatements for inheritance tax, i.e. on the sums paid by the estate on behalf of the successors before the fixed date of divided enjoyment and contributed by them to the estate.

Rewards owed by the spouses to the conjugal community are also subject to partition tax, but only the excess of rewards over recoveries may be taxed.

Lastly, where the joint owners declare that they have previously shared certain assets amicably and without a deed having been drawn up, partition tax is payable on these assets.

1. Taxable value of shared net assets

1. Taxable value of shared net assets

The taxable value of the shared assets is their actual market value. If the net shared assets, which form the basis of taxation, are not determined in the deed, the parties must provide a detailed estimated statement, made in accordance with article 851 of the CGI.

2. Time of the estimate of the shared net assets

In principle, assets must be valued at the date of the deed of partition. However, if the parties indicate another date as being the date of divided enjoyment, the tax is calculated on the value of the property at that date, subject to fraud or obvious error which it would be up to the administration to establish and provided also that the time elapsed between the date of divided enjoyment and that of the deed of partition is not significant.

In this respect, the Cour de cassation has ruled that it is up to the judges of the court of first instance, having regard to the circumstances of the case and taking into account the respective interests of the co-sharers, to determine the date, which is undoubtedly as close as possible to the deed of partition, on which the assets are valued and which constitutes the starting point for divided enjoyment.

Consequently, the date of divided enjoyment validated by a court, for whatever reason, in a decision that has become final, cannot be called into question by the administration and the taxation of the property must be based on its value at that date.

3. Deduction of the liabilities encumbering the partitionable estate

The liabilities encumbering the partitionable estate must be deducted when calculating partition duty or land registration tax.

The following in particular constitute deductible liabilities :

– death duties and the costs of the partition deed ;

– debts owed by the deceased to the heirs;

– special bequests made by the deceased;

– rewards owed by the estate to the community.

The parties are not obliged to justify or itemise the liabilities, but may indicate the total amount.

1. Special cases of outright partition

1. Partial division

If co-owners share only a fraction of the undivided property, the partition tax is payable only on the value of that fraction.

However, if one of the joint owners is definitively distributed by means of allotments representing his share in the undivided estate, while the other joint owners remain in joint ownership of the remainder of the estate, the tax is payable on the entire undivided estate, as the division concerns all the property. This rule does not apply to company divisions, where the tax is payable only on the assets allocated.

In the latter case, and subject to the exception concerning companies, if the parties remaining in undivided ownership proceed with the division by the same deed, no duty or tax is payable for this sub-division.

On the contrary, the transaction is taxable if it takes place by separate deed.

Furthermore, in the event of a partial division, liabilities are deductible from the gross shared assets only to the extent that they exceed the value of the property left in joint ownership, the liabilities being deemed to be deducted, in priority, from the property not included in the division.

However, if part of the property subject to the partial partition is expressly allocated to the payment of the undivided liabilities, the latter must be deducted in full from the shared assets. The same applies if the deed of partition regulates the allocation of the liabilities by stipulating that each co-sharer shall bear them in a specified proportion.

1. Minutes of boundary demarcation

In principle, the demarcation report, the purpose of which is to establish the dividing line between two properties, taking into account the rights of the parties as they result from the existing property deeds, is a purely confirmatory document. Its publication gives rise to the collection of land registration tax at the fixed rate set out in article 674 of the CGI.

However, if the demarcation has the effect of changing the composition of the land, land registration tax is payable on the value of the area taken from one land unit to be added to the other. Depending on the information contained in the report, the tax is payable at the rate applicable to sales, exchanges or divisions.

1. Division of an estate comprising immovable property or rights to immovable property for which the deceased’s right of ownership was not established before his death by a duly transcribed or published deed

In the event of the partition of an estate including both titled immovable property or immovable property rights and immovable property or immovable property rights in respect of which the deceased’s right of ownership was not established before his death by a duly transcribed or published deed, the partition duty paid at the time of the first partition is deductible from the duty due in respect of the new partition including the immovable property or immovable property rights for which the deceased’s right of ownership had not been established before his death by a duly transcribed or published deed and which have been titled, provided that each of the co-partitioners retains the property or rights allocated to him at the time of the first partition.

End of parenthesis

1. The question of sharing

1. Application for annulment

An heir may apply to the court to have the partition annulled in the following 2 situations:

• His agreement has been extorted by violence or deceit. Depending on the circumstances, the court may authorise a supplementary or corrective division.
• He was forgotten when the estate was settled. The heir concerned may also apply to the court for his share in kind or in money.

They have 5 years in which to take action.

2. Request for additional information

An heir may request a supplement in kind or in money if he demonstrates that the lot he has received is more than a quarter less than he should have received. In this case, they may take action within 2 years.

1. Judicial division

1. Conditions

If amicable division is not possible (e.g. because one of the undivided co-owners opposes it), the heirs may apply to the court in the place where the estate was opened.

1. Realization

Partition consists of allocating property to each heir for a value equal to their rights in the joint ownership.

If the situation is straightforward, the judge will order the division.

In the case of a complex estate, the court appoints a notary to carry out the division and a judge to supervise it.

If an heir applies for preferential allocation: In a division of property (e.g. following an inheritance or a divorce), the right given to a person to be allocated a property (farm, house, etc.) in priority to other co-sharers (e.g. heirs) of certain assets, the judge decides on a case-by-case basis.

At any time, the heirs may abandon the legal proceedings and continue with the amicable division if the conditions are met.

1. Cost (see Cost – Amicable division)
2. Questioning the division (see Questioning the division – Amicable division)