TABLE OF CONTENTS
- 1 How is the disposition of property upon death (will, joint will, agreement on succession) drawn up?
- 2 Should the disposition be registered and if yes, how?
- 3 Are there restrictions on the freedom to dispose of property upon death (e.g. reserved share)?
- 4 In the absence of a disposition of property upon death, who inherits and how much?
- 5 What type of authority is competent:
- 6 Short description of the procedure to settle a succession under national law, including the winding-up of the estate and sharing out of the assets (this includes information whether the succession procedure is initiated by a court or other competent authority on its own motion)
- 7 How and when does one become an heir or legatee?
- 8 Are the heirs liable for the deceased's debts and, if yes, under which conditions?
- 9 What are the documents and/or information usually required for the purposes of registration of immovable property?
- 9.1 Is the appointment of an administrator mandatory or mandatory upon request? If it is mandatory or mandatory upon request, what are the steps to be taken?
- 9.2 Who is entitled to execute the disposition upon death of the deceased and/or to administrate the estate?
- 9.3 What powers does an administrator have?
- 10 Which documents are typically issued under national law in the course of or at the end of succession proceedings proving the status and rights of the beneficiaries? Do they have specific evidentiary effects?
This factsheet was prepared in cooperation with the Council of the Notariats of the EU (CNUE).
1 How is the disposition of property upon death (will, joint will, agreement on succession) drawn up?
In a cross-border situation, a will is valid if it conforms to the law of the place where it was made.
Basic conditions in France
- The person making the will (testator) must be of sound mind (Article 901 of the Civil Code).
- The testator must have legal capacity (Article 902 of the Civil Code).
- Special provisions apply for persons under legal protection ; thus a minor under 16 years old cannot make a will (Article 903 of the Civil Code), nor can adults under guardianship. Persons under protective supervision (curatelle) may make a will (Article 470 of the Civil Code) subject to the provisions of Article 901.
In France, four types of will are recognised:
- holographic wills: testators must write, date and sign these entirely by hand (Article 970 of the Civil Code).
- notarially recorded wills: must be made before two notaries or one notary and two witnesses (Article 971 of the Civil Code). If the will is made before two notaries, it is dictated to them by the testator. The same applies if the will is made before only one notary. In both cases the will is then read to the testator (Article 972 of the Civil Code). The will must be signed by the testator in the presence of the notary and the two witnesses (Article 973 of the Civil Code) and signed by the notary and witnesses (Article 974 of the Civil Code).
- sealed wills: typed or handwritten by the testator or another person, signed by the testator, then presented closed and sealed before a notary in the presence of two witnesses (Article 976 of the Civil Code).
- international wills: presented by the testator to a notary and two witnesses, signed by them and then attached to a certificate drawn up by the notary with whom they will be lodged (Washington Convention, 26 October 1973).
Testators may revoke their wills at any time in accordance with Article 895 of the Civil Code.
Agreements as to succession
Agreements as to succession have been recognised since January 2007. They authorise the prospective heir (the child) to relinquish (waive) all or part of the inheritance in advance to one or more persons who may or may not be heirs (brothers or sisters or their descendants).
To be valid, the waiver must be in the form of an official deed and must be made before two notaries. The beneficiaries of the inheritance must also be named in the agreement.
2 Should the disposition be registered and if yes, how?
All wills, particularly holographic wills, may be registered by the notary in the Central Register of Wills (Fichier central des dispositions de dernières volontés, FCDDV).
This central register may be consulted by a notary at the request of any person providing proof of their capacity as heir or legatee, subject to production of a death certificate for the person whose will is being searched for.
Notarially recorded wills are always registered on the FCDDV.
3 Are there restrictions on the freedom to dispose of property upon death (e.g. reserved share)?
Under French law, only descendants of the deceased (children, grandchildren, etc., in order of priority), and the spouse of the deceased where there are no descendants, are entitled to a reserved portion.
Ascendants and collateral relatives have no rights to a reserved portion.
The rights to a reserved portion, which restrict the freedom to make a will, may not exceed three quarters of the estate. Heirs entitled to a reserved portion (entitled heirs – héritiers réservataires) may not waive that portion unless they waive succession. On the other hand, they may waive in advance the right to take action for reduction for reduction against excessive donations.
- Reserved portion for children : half if the deceased leaves only one child on death, two thirds if he leaves two children and three quarters if he leaves three children or more (Article 913 of the Civil Code).
- Reserved portion for a surviving spouse: the reserved portion for a surviving spouse is one quarter of the assets in the estate (Article 914-1 of the Civil Code). It only applies if there are no descendants or ascendants and only for any succession opened with effect from 1 July 2002.
Procedure for asserting a right to a reserved portion
An action for reduction (action en réduction) allows heirs to assert their right to the reserved portion. Thus, if a direct or indirect gift interferes with the reserved portion of one or more heirs, the gift may be deducted from the disposable (non-reserved) part of the estate (Article 920 of the Civil Code).
The action may only be brought by entitled heirs within five years of the opening of the succession or two years from the date of discovery of the interference (Article 921 of the Civil Code).
Any entitled heir of adult age may waive in advance their right to bring an action for reduction (Article 929 of the Civil Code). The waiver must be recorded in an official deed executed before two notaries. It is signed separately by each of the parties waiving their rights, in the presence of only the notaries. It indicates precisely the future legal consequences for each of those parties.
4 In the absence of a disposition of property upon death, who inherits and how much?
Where there is no will, the order of succession is as follows under French law:
- if the deceased had no spouse and left children, the estate passes to the descendants in equal shares (Articles 734 and 735 of the Civil Code);
- if the deceased was single and had no children, the estate passes to the parents of the deceased, his brothers and sisters and their descendants (Article 738 of the Civil Code);
- if the deceased does not leave a brother or sister or their descendants, his mother and father inherit, each receiving half the estate (Article 736 of the Civil Code);
- if the mother and father have predeceased the deceased, the brothers and sisters of the deceased or their descendants inherit, excluding other relatives, ascendants or collateral relatives (Article 737 of the Civil Code).
If the deceased has left a spouse, the matrimonial property rights must be settled before settlement of the succession per se. After settlement of the property rights arising out of the matrimonial relationship, the following rules apply:
- if the deceased leaves a spouse and children, the spouse has an option. They may choose between usufruct (the right to enjoy the use and benefits) of all existing assets or ownership of a quarter of the assets if all the children were born to the two spouses and ownership of a quarter when there are one or more children who were not born to the two spouses (Article 757 of the Civil Code);
- if the deceased leaves a spouse and ascendants, half the estate passes to the spouse, one quarter to the father and one quarter to the mother. If one of the ascendants has predeceased him, the quarter passes to the spouse (Article 757-1 of the Civil Code);
- if there are no ascendants or descendants, the whole estate passes to the surviving spouse (Article 757-2 of the Civil Code). Notwithstanding Article 757‑2 of the Civil Code, when there are no ascendants, the brothers and sisters of the deceased or their descendants receive half the assets in kind included in the estate, assets received by the deceased from his ascendants through succession or gift. This is the right in reversion (Article 757-3 of the Civil Code). All other assets pass to the surviving spouse.
Partners in a registered or unregistered partnership
The surviving partner in an unregistered partnership and the surviving partner in a registered partnership do not have a legal title to inheritance. On the other hand, they may receive a legacy.
Thus a registered partner is not considered to be the deceased’s heir. Registered partners only have usufruct of the family home after the death of their partner in accordance with Article 763 of the Civil Code. They therefore inherit only if they have been named as an heir in the will.
Where there are children, whether or not they were born to the couple, only the disposable (non-reserved) portion may be bequeathed to the surviving partner. The disposable portion of the estate varies according to the number of children: one third of the estate if there are two children, one quarter if there are three children or more.
Where there are no children, the entire estate may be left to the surviving partner or a third party, since there are no entitled heirs. However, if the parents of the deceased are still alive, they may apply for recovery of the assets they have given their predeceased child, up to a quarter of the estate for each living parent.
5 What type of authority is competent:
5.1 in matters of succession?
In France, matters of succession are dealt with by notaries. Their involvement is mandatory if the estate includes immovable property. It is optional if there is no immovable property.
The notary draws up the order of succession in a statutory declaration (acte de notoriété) and immovable property certificates recording the transfer of immovable property after the death. He assists the heirs with their tax obligations (drawing up and filing the declaration of succession within the required period and payment of inheritance tax). If the nature of the assets permits and depending on the number of heirs and their wishes, he arranges the division of the assets between the heirs, preparing a deed of partition (acte de partage).
In the event of a dispute, the district court in the place where the succession is opened has exclusive material and territorial jurisdiction.
5.2 to receive a declaration of waiver or acceptance of the succession?
The district court for the place where the succession is opened is competent to receive declarations of waiver or acceptance up to the amount of the net assets in the estate.
No special formalities are required if succession is accepted unconditionally.
5.3 to receive a declaration of waiver or acceptance of the legacy?
The district court for the place where the succession is opened is competent to receive waivers of universal legacies and legacies by general title. Under French law no declaration is required for waivers of individual legacies.
5.4 to receive a declaration of waiver and acceptance of a reserved share?
System unknown in French law.
6 Short description of the procedure to settle a succession under national law, including the winding-up of the estate and sharing out of the assets (this includes information whether the succession procedure is initiated by a court or other competent authority on its own motion)
Succession is opened on death, at the last place of residence of the deceased.
Immediately after the death, the heirs have three options: to accept the succession unconditionally, to accept the succession up to the value of the net assets or to waive the succession.
Unconditional acceptance may be express or tacit. It is tacit when heirs take action that necessarily implies the intention to accept and that they would only be entitled to take in their capacity as accepting heirs.
Acceptance of the succession up to the value of the net assets requires a declaration to the registry of the district court in whose jurisdiction the succession is opened. The declaration is accompanied or followed by the inventory of the estate. That enables heirs to ensure that their personal property is not confused with that of the estate, to retain vis-à-vis the estate all the rights they previously held to property of the deceased, and to be liable for the debts on the estate only up to the value of the property they have received.
Waiver of succession is not assumed. To be effective vis-à-vis third parties, it must be sent to or lodged at the court within whose jurisdiction the succession is opened.
The period allowed for exercising the option on succession is four months. After that period of reflection, if an heir has not taken a decision, a creditor, co-heir, the State or any person who would inherit if the heir waived their claim may require them to exercise one of the three options. The heir then has two months to take a decision, but may apply to the court for an extension. If there is no reply, they are deemed to have accepted the succession unconditionally. However, if no one forces the heir to make a choice, they are allowed up to 10 years to reach a decision, after which they can be deemed to have accepted the succession implicitly.
The principle in French law is to settle estates amicably, without involvement of the courts. The courts can only be asked to intervene if there is disagreement between the heirs.
Most estates are settled with the help of a notary. However, it is possible to settle without a notary in some circumstances, particularly if the property of the testator does not include immovable property. When the heirs consult a notary, they may choose whichever notary they wish. If they cannot agree on the choice of notary, each may use their own notary if they wish.
Once the notary has been chosen, the next step is to determine the composition of the testator’s assets , having regard to the matrimonial property regime of the deceased, any previous gifts, etc. To establish the contents of the estate to be taken into account, the notary will contact various organisations (insurance companies, banks, etc.) and ask the heirs to arrange a valuation of the immovable property and other assets not quoted on the Stock Exchange. An inventory of movable property might also be necessary. The liabilities will be determined by listing the deceased’s debts, whether these are simple invoices, taxes due, recoverable social assistance, sureties, or compensatory payments to an ex-spouse.
Immediately after the death, the heirs become joint owners of all the assets in the estate until the property is divided. As co-owners they are also responsible for the liabilities in the same proportions. Deeds of sale for the jointly owned property (disposal) must be decided on by unanimity, unless the jointly owned property has to be sold to pay the debts and charges on the joint property. On the other hand, administrative acts may be decided by a majority of at least two thirds of the joint rights. In addition, any co‑owner may take the necessary steps to retain jointly owned property. In the event of deadlock, the matter may be taken to court in order to override the need for authorisation from some of the co‑owners.
The division of the property in the estate between the heirs ends their joint ownership. The division is done amicably if the beneficiaries are agreed, or after legal proceedings in the event of disagreement, with the involvement of a notary. Furthermore, the division may be total or partial if some assets continue to be jointly owned (usufruct property, for example).
This final stage in the settlement of the estate involves recording the transfer of the property to the heirs. Thus certificates of ownership are required as proof that the heirs are the new owners of the property, whether this consists of immovable property, shares in civil-law partnerships, vehicles, or securities. In the case of immovable property, the heirs must have the certificate published in the land register. The same applies to shares in civil-law partnerships, which have to be published at the registry of the commercial and companies court.
7 How and when does one become an heir or legatee?
In French law, heirs acquire the property and obligations of the deceased immediately after the death (first paragraph of Article 724 of the Civil Code).
Some heirs (entitled heirs and all heirs ab intestato) have the right to possession (second paragraph of Article 724 of the Civil Code). Others, particularly the State, have to obtain a possession order (envoi en possession) (third paragraph of Article 724). Thus, since the Law of 3 December 2001, legatees and universal donees take possession without formalities under Article 724 of the Civil Code. That article then refers to Article 1004 for payment of the legacy in the presence of heirs, Article 1006 for automatic the right to possession where there is no heir and Article 1008 subject to the possession order.
The possession order for the State applies in cases whether there is no heir by blood or legatee. The State is then represented by the Public Lands Administration (Administration des domaines).
To take up the succession, legatees by general title and universal legatees must apply to the heirs with the right to possession, through whom they will obtain payment of their legacy.
Unconditional acceptance of the succession
Unconditional acceptance may be express or tacit (article 782 of the Civil Code).
An act implying the intention to accept which cannot be performed by anyone other than an heir thus constitutes an act implying acceptance (Article 783 of the Civil Code).
Disposal of a specific asset entails acceptance (sale of immovable property, furniture), since those items form part of the estate. Administrative acts (apart from provisional administrative acts and conservatory acts) by an heir also imply unconditional acceptance of the succession.
Acceptance up to the value of the net assets
Heirs may declare that they intend to accept the succession only up to the value of the net assets (Article 787 of the Civil Code). They will be responsible for the liabilities but only up to the value of the property they receive under the estate. A declaration must be made and lodged with the registry of the district court in whose jurisdiction the succession is opened (Article 788 of the Civil Code).
The declaration must be accompanied or followed by an inventory of the property in the estate. The inventory is to be drawn up by a notary, an auctioneer–valuer (commissaire-priseur), or a bailiff (huissier) (Article 789 of the Civil Code).
The inventory must be lodged at the court within two months of the declaration. In the absence of an inventory, the succession will be deemed to have been accepted unconditionally (Article 790 of the Civil Code). The inventory must show all items in the estate, assets and liabilities.
Succession can always be waived by making a declaration to the district court in whose jurisdiction the succession is opened. Waiver must be made explicitly (Article 804 of the Civil Code).
An heir who waives succession is deemed never to have been an heir.
Revocation is retroactive (Article 807 of the Civil Code).
8 Are the heirs liable for the deceased's debts and, if yes, under which conditions?
Universal heirs or heirs by general title who accept succession unconditionally are liable indefinitely for the debts and charges on the estate. They are bound by the legacies of sums of money only up to the value of the estate assets net of debts (Article 785 of the Civil Code).
Where there are several heirs, each is personally bound by the debts and charges on the estate in respect of their portion of the estate (Article 873 of the Civil Code).
Heirs who have opted for unconditional acceptance have unlimited liability for all the deceased’s debts and charges. However, they may apply to be released from all or part of their obligation for a debt on the estate if, at the time of succession, they might have been unaware of the existence of that liability and payment of the debts could seriously prejudice their own assets.
- If they have opted for acceptance up to the value of the net assets, heirs are only bound by debts on the estate up to the value of the property they have received.
- Heirs who have waived succession are not bound by the debts.
9 What are the documents and/or information usually required for the purposes of registration of immovable property?
Under Article 710-1 of the Civil Code, land registration formalities require instruments drawn up in authentic form by a notary practising in France, court decisions, and authentic documents issued by an administrative authority.
9.1 Is the appointment of an administrator mandatory or mandatory upon request? If it is mandatory or mandatory upon request, what are the steps to be taken?
The involvement of an agent is not provided for or required by French law. However, it is possible if one is appointed by the court. It is the responsibility of the heirs to supply information to the land registries, assisted by the notary. The deceased may appoint an executor, whose powers are defined in Article 1025 et seq. of the Civil Code.
9.2 Who is entitled to execute the disposition upon death of the deceased and/or to administrate the estate?
It is the responsibility of the heirs to execute the will and administer the estate, In the event of a dispute, the district court for the place where the succession is opened has jurisdiction.
In such cases, the court hearing the dispute may appoint an agent for the estate to represent all the heirs within the limits of the powers conferred on him.
Other types of authorisation are also available under French law for the administration of an estate, in particular posthumous power of attorney whereby the testator appoints an agent to administer or manage part of the estate for the heirs. The other options are agency by agreement, which is subject to the general rules of law, and lastly authorisation by the court, as mentioned earlier.
9.3 What powers does an administrator have?
Heirs with possession have full powers. In the event of a problem or deadlock, the matter may be taken to court and an administrator may be appointed. In that case, the agent is responsible for organising the estate provisionally where there has been inaction, default or error by one or more heirs to the estate. In this role, the agent acts to conserve, supervise and administer the estate (Article 813-4). Within the limits of the powers conferred on him, the agent also acts for all the heirs in civil and judicial acts (Article 813-5 of the Civil Code).
10 Which documents are typically issued under national law in the course of or at the end of succession proceedings proving the status and rights of the beneficiaries? Do they have specific evidentiary effects?
In French law, the statutory declaration is the cornerstone of the settlement of an estate by a notary. The succession closes with the division of property, which ends joint ownership. Division may be done amicably (Article 835 of the Civil Code) or by court order (Article 840 of the Civil Code). Any of the heirs may apply for division (Article 815 of the Civil Code). It may also be initiated by a creditor of a joint owner (Article 815-17 of the Civil Code).
The passing of the estate to the heirs is generally recorded in an official document (statutory declaration – acte de notoriété), which is obtained from a notary and indicates the heirs of the deceased and the proportions in which they inherit.
Thus it establishes who is entitled to inherit.
When drawing up the statutory declaration, the notary calls two witnesses produced by the heirs. The witnesses must be adults, not married to each other and not related to the deceased, although they must have known him or her well.
The statutory declaration is an authentic instrument.
After the statutory declaration has been drawn up, at the end of the process of settling the estate the notary draws up a deed of partition (acte de partage) determining for each portion how the testator’s property is to be divided between the heirs. That is also an authentic instrument.
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Last update: 13/02/2017