How to proceed with a succession?
Table of contents
- How to declare an estate?
- Estate blocked by an heir when sharing, what to do?
- How to get out of indivision?
- How to sell a property during an estate?
- How to settle an estate when an heir is a protected minor or major?
- How to calculate inheritance tax?
- How long does the notary have to settle an estate?
- Waiver, acceptance and bad faith?
"When the deceased has not made a will, his property goes to his descendants (child, grandchild, great-grandchild), and to his spouse if he was married. When the deceased has made a will, he must reserve part of his estate for his descendants. He may allocate the remaining share freely (for the benefit of an heir or a third party)." - https://www.service-public.fr/
How to declare an inheritance?
You are required to file a declaration of succession within 6 months from the date of death if it occurs in France. A period of 12 months is provided for deaths occurring outside France (except in special cases for Mayotte and Réunion).
However, the filing of the declaration is not mandatory when the gross estate assets (i.e. all assets before deduction of debts) are less than:
The declaration of succession is made using forms 2705-SD, 2705-S-SD and 2705-A-SD or cerfa 11277, cerfa 12322 and cerfa 12321, accessible on our website or that of taxes.
However, the filing of the declaration is not mandatory when the gross estate assets (i.e. all assets before deduction of debts) are less than:
- €50,000 for a transfer for the benefit of direct heirs and surviving spouse provided that they have not previously benefited from an unregistered or undeclared gift or manual donation from the deceased;
- €3,000 for the other heirs.
The declaration of succession is made using forms 2705-SD, 2705-S-SD and 2705-A-SD or cerfa 11277, cerfa 12322 and cerfa 12321, accessible on our website or that of taxes.
Succession blocked by an heir during the partition, what to do?
After tensions over the acceptance or not of the succession, it is common for the division of lots to generate tensions.
Sharing can therefore take place:
Sharing can therefore take place:
- In an amicable manner with the notary
- By preferential allocation : this is a special request from one of the heirs to the judge to obtain a particular lot (main residence of the living spouse, exercise of a professional activity, etc.)
- By eliminatory attribution : this is an heir who wishes to leave an indivision
- Via a judicial division : if no amicable agreement has been reached or if a co-owner blocks the division, it is necessary to seize the tribunal de grande instance for a judicial division if the estate assets exceed € 10,000.
How to get out of joint ownership?
Article 815 of the Civil Code states: "No one may be compelled to remain in joint ownership". You are therefore entitled to sell or transfer your shares and thus get out of joint ownership.
The shares can then be transferred to a second co-owner or to a third party unrelated to the co-ownership. In all cases, the other heirs have a right of pre-emption (Article 815-14 of the Civil Code)
To sell an undivided property, we recommend that you make a fair estimate of its value.
How to sell a property during an inheritance?
1.As sole heir
It is enough to call a notary who establishes the real estate certificate. It is the notarial deed that legally formalizes the transfer of the dwelling and makes you the new owner.
The law regulates this procedure and its pricing.
2.In the case of multiple heirs
Each heir must give his consent for the sale of an undivided property.
However, according to the inheritance reform (law of 12 May 2009), if several heirs have a total of two-thirds of the shares of the joint ownership, they are entitled to appeal to the tribunal de grande instance. The latter may authorize the sale of the deceased's property.
Before referring the matter to the Judicial Court, the call to a notary is mandatory. In the event that the other heirs do not come forward (within three months), the notary draws up a report.
If the project does not affect the rights of the other heirs (1/3), the Judicial Court may authorize the transfer.
It is enough to call a notary who establishes the real estate certificate. It is the notarial deed that legally formalizes the transfer of the dwelling and makes you the new owner.
The law regulates this procedure and its pricing.
- The notary must first look for a will
- He must draw up minutes of opening and description of the will
- He prepares the act of notoriety which lists the heirs and legatees
- The heir and the notary bring together all the elements of the deceased, the patrimony and real estate if there is
- The heir then has 3 solutions: renounce the succession, accept it partially or accept it in its entirety
- The notary thus attests to the ownership of the patrimony which allows him to write the certificate of real estate ownership
- Within 6 months of the death of the deceased, the heir must declare the succession. and he must pay the inheritance tax that is paid to the tax office.
- The heir or legatee can thus sell the property
2.In the case of multiple heirs
Each heir must give his consent for the sale of an undivided property.
However, according to the inheritance reform (law of 12 May 2009), if several heirs have a total of two-thirds of the shares of the joint ownership, they are entitled to appeal to the tribunal de grande instance. The latter may authorize the sale of the deceased's property.
Before referring the matter to the Judicial Court, the call to a notary is mandatory. In the event that the other heirs do not come forward (within three months), the notary draws up a report.
If the project does not affect the rights of the other heirs (1/3), the Judicial Court may authorize the transfer.
How to settle an inheritance when the heir is a minor or a protected adult?
If you are the representative of a minor (parents or tutor) or a protected adult (tutor, curator, authorized person) who inherits, then you must settle the estate on behalf of the person you represent.
You have the choice between 3 solutions. This is called the estate option :
- Accept the succession outright
- Accept the estate up to the net assets
- Renouncing succession
All information here: https://www.demarches.interieur.gouv.fr/particuliers/comment-regler-succession-heritier-mineur-majeur-protege
How to calculate inheritance tax?
How much time does the notary have to settle an estate ?
The intervention of a notary is not systematic. The law provides that a notary must necessarily intervene in certain cases, namely:
This period also corresponds to the time available to the heirs to file the declaration. The settlement can only be made when the declaration by the heirs is made.
However, it may be that sometimes this deadline is not respected, especially when there is a blockage causing a delay. This blockage may be a consequence of one or more disagreements of the successors. As a result, the notary can only settle the succession if all the successors agree and sign the deed of devolution of the succession.
Thus, this period can be extended by as many days as necessary so that you can have 60 days from the closing of the inventory to make this decision.
PS : If the declaration is filed more than six months after the death, you receive late payment interest (0.2% per month, plus a penalty of 10% from the thirteenth month following the death).
- When the estate includes at least one piece of immovable property.
- If the deceased had signed a marriage contract, or drawn up a will or made a donation between spouses, or made gifts during his or her lifetime.
- When the estate assets exceed 5,000 euros.
This period also corresponds to the time available to the heirs to file the declaration. The settlement can only be made when the declaration by the heirs is made.
However, it may be that sometimes this deadline is not respected, especially when there is a blockage causing a delay. This blockage may be a consequence of one or more disagreements of the successors. As a result, the notary can only settle the succession if all the successors agree and sign the deed of devolution of the succession.
Thus, this period can be extended by as many days as necessary so that you can have 60 days from the closing of the inventory to make this decision.
PS : If the declaration is filed more than six months after the death, you receive late payment interest (0.2% per month, plus a penalty of 10% from the thirteenth month following the death).
Waiver, acceptance and bad faith?
1.Waiver
You have the right to renounce an estate. This is the case when the total debts of the deceased exceed the value of the property left as an inheritance.
The renunciation is done by a notarial deed, that is to say to fill out a declaration of renunciation via the Cerfa form n ° 15828-05. You can pre-fill it online before sending it either to the notary or to the court registry of the deceased's last domicile.
2.Acceptance
If you accept an estate, you must pay its debts. However, you are generally not required to pay the portion of debts that exceeds the value of the property inherited.
However, you may be held liable for debts that exceed the value of the property received if, for example, you neglected to make an inventory of the deceased's property.
Some omitted actions may result in acceptance of the estate, even if there is no formal agreement. The reason is that, according to the law, you are presumed to have accepted the succession if you:
3.Bad faith
Even if you have accepted the succession, you are deemed to have refused it if, in bad faith:
It should be noted that death also puts an end to the commitments that the deceased would have made by acting as surety for another person or by vouching for another person.
You have the right to renounce an estate. This is the case when the total debts of the deceased exceed the value of the property left as an inheritance.
The renunciation is done by a notarial deed, that is to say to fill out a declaration of renunciation via the Cerfa form n ° 15828-05. You can pre-fill it online before sending it either to the notary or to the court registry of the deceased's last domicile.
2.Acceptance
If you accept an estate, you must pay its debts. However, you are generally not required to pay the portion of debts that exceeds the value of the property inherited.
However, you may be held liable for debts that exceed the value of the property received if, for example, you neglected to make an inventory of the deceased's property.
Some omitted actions may result in acceptance of the estate, even if there is no formal agreement. The reason is that, according to the law, you are presumed to have accepted the succession if you:
- Use property in the estate as if it were your personal property;
- exceed the prescribed time limits for renouncing the estate;
- Exempt the liquidator from making an inventory of the deceased's property.
3.Bad faith
Even if you have accepted the succession, you are deemed to have refused it if, in bad faith:
- you have taken or concealed property from the estate;
- You did not report property from the succession to the liquidator at the time of the property inventory.
It should be noted that death also puts an end to the commitments that the deceased would have made by acting as surety for another person or by vouching for another person.
Ce qu’il faut retenir :
- You are required to file a declaration of succession within 6 months from the date of death if it occurs in France. A period of 12 months is provided for deaths occurring outside France (except in special cases for Mayotte and Réunion).
- The intervention of a notary is not systematic. The law provides that a notary must necessarily intervene only in certain cases.
- In principle, and in accordance with the applicable legal and tax rules, the notary has a period of 6 months from the death to settle a succession.
- This period also corresponds to the time available to the heirs to file the declaration.
- You have the right to refuse or accept an inheritance.
- In the case of multiple heirs, each heir must agree to the sale.
- If you are the representative of a minor (parents or tutor) or a protected adult (tutor, curator, authorized person) who inherits, then you must settle the estate on behalf of the person you represent.
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Posted on 26/01/2023 by
Andy LECUYER
