Anticipation of a succession: tips, disinheritance, and donations
In this article we will discuss the prevention of an inheritance apart from the known “will”. Indeed, it is possible through various legal mechanisms to anticipate one's succession and better control it. In addition, we will deal with legal points to know absolutely before making donations.
As its name suggests, the donation-partage is both a donation and a sharing: it allows you to anticipate your estate during your lifetime by organizing the sharing (total or partial) of your own property.
It is different from the will: the donation-partage takes effect during your lifetime, while the will only takes effect on your death.
It is done for the benefit of your children: it allows you to prepare with them the sharing of your heritage to be transmitted.
You can also pass on your wealth to your grandchildren 2, or a part to your children and another part to your grandchildren: we then speak of transgenerational donation-sharing. However, you will need to meet several conditions:
- Have the agreement of your child who renounces all or part of his rights
- Have the agreement of your beneficiary grandchildren
If you have no children, you can also make a donation-partition to your presumptive heirs, that is to say the people who are intended to collect your estate on your death (parents, brothers and sisters, etc.). ).
Consequences and benefits :
You must make this donation-partition before a notary, for your own property or that shared with your spouse (with his agreement).
Your beneficiaries immediately and definitively become owners of the donated goods, before the opening of the succession in the event of death. However, you can keep the use of it by reserving the usufruct [see below].
This donation-sharing includes tax advantages, encouraging families to anticipate the transmission of their heritage. For example :
- the goods are estimated on the day of the donation, and not on the day of death
- the applicable allowances are renewed every 15 years (€100000 per child and per donor 3)
- specific allowances are also envisaged for transgenerational shared donations.
It is necessary to be vigilant with the division between the heirs: if it is not balanced, the heirs will be able to dispute your distribution.
II) Donation with reserve of usufruct4
It is a donation with an advantage kept by the donor: it allows the transmission of property: the donee receives the bare ownership, while allowing the donor to retain the enjoyment of his property by keeping the usufruct.
The donee, through bare ownership, can dispose of this property, manage it.
The donor can continue to use these assets, collect the fruits (such as rents or agricultural crops, etc.). The donee will only be the full owner upon the death of the donor.
- Anticipate your succession
- Organize asset management
- Control the fate of the donated property: although the donee has received the bare ownership and can dispose of the property, he will need the agreement of the usufructuary (the donor) to be able to sell. In case of disagreement, the sale cannot take place.
- Limit the amount of transfer duties : the bare ownership corresponds to a percentage of the value of the full and entire property, which is calculated according to the age of the usufructuary: it is therefore lower than in the case of a total transmission.
- Upon the death of the donor, there are no additional transfer taxes to be paid by the donee
III) Donations in advance and excluding inheritance shares
A) Donation made excluding inheritance shares 5 :
It gives an advantage to one heir over another: it is said that this donation will not be “reportable to the estate”, that is to say that it will be added to the normal share of the heir (extra).
But this donation must not exceed the amount of the available portion [this point will be explained to you by a notary if necessary], that is to say not affect the hereditary reserve of other heirs. Indeed, if this donation is excessive, it may be reduced.
The donor can expressly specify that he wishes to make a donation outside the inheritance. Bequests are deemed to be made excluding inheritance shares 6.
|Difference between donations and legacies|
La donation 7 is an act where the donor transmits one of his assets to a donee who accepts it. This transmission must be recorded by a notary in a notarial deed. The donation is then irrevocable: it cannot be reversed. leg 8 corresponds to the transmission of property by a testator to a legatee, in a will that can be made with the help of a notary or alone (we speak of a holographic will). This transmission takes place only after the death of the testator.
B) Advance donation of estate shares 9 :
As a matter of principle, donations made by the deceased to the various heirs must be "reported" to the succession, in order to restore a certain equality between them. Only the heirs are required to make this “report”: a third party who has received a property as a gift but is not considered an heir is not concerned and can keep it in full.
Thus, the share due to each heir will be calculated, after deducting these different previous donations (the estate is rebalanced according to previous donations to establish equality).
Thus, this donation makes it possible to make an advance on the inheritance share of the heir: for example, an heir who would be in need before the opening of the succession.
IV) What is obligatorily devolved to the heirs: impossibility of disinheriting one's children?
Children are compulsory heirs, which means that they are necessarily entitled to a share of the estate of the deceased parent. Each child will be entitled to a share equal to the other.
Thus, the hereditary reserve 10 is a portion of the inheritance reserved by law for the compulsory heirs (the children or the spouse if there are no descendants): Consequently, if the deceased has granted gifts which would exceed this portion (hereditary reserve) , then these liberalities will have to be reduced so as not to affect them (reduction of legacies, donations, etc.)
The other part of the deceased's property is called the disposable portion: this portion, the deceased, during his lifetime, can dispose of it freely (will, donations).
Thus, you will have understood it, one cannot disinherit the children. You are only free to dispose of your available quota. The only way is to empty his heritage during his lifetime.
However, the law provides that a child who has committed a serious fault (murder, attempt, etc.) with regard to the deceased parent may be excluded from the inheritance.
In addition, there are tricks, such as life insurance for the benefit of a particular child, but the best thing is to benefit from a nationality of a country with more favorable laws and/or to remain there, to use the “professio juris” to choose your inheritance law.
Calculation of the shares of each heir:
The share of each heir11 in the total reserve is calculated as follows:
- If the deceased has only one child, the latter benefits from a hereditary reserve equal to half of the assets.
- If he has two children, each child benefits from ⅓ of the goods, and there remains ⅓ of the goods in available quota.
- If he has three or more children, the children equally share ¾ of the property, and the available portion is equal to ¼.
- If he has no children but is married, the surviving spouse has ¼ of the estate as a reserve, and the available portion is made up of ¾.
- Articles 1076 and following of the Civil Code. ↩
- Articles 1078-4 and following of the Civil Code. ↩
- Article 779 of the General Tax Code. ↩
- Articles 949 and 950 of the Civil Code. ↩
- Articles 843 and following of the Civil Code. ↩
- Article 843 last paragraph of the Civil Code. ↩
- Articles 931 and following of the Civil Code. ↩
- Articles 967 and following, articles 1014 and following of the Civil Code. ↩
- Articles 843 and following of the Civil Code. ↩
- Article 912 of the Civil Code. ↩
- Article 913 of the Civil Code. ↩