I have been named as a legatee by will. How can I obtain the issuance of my legacy?
There are three types of legacies:
- The universal legacy : the testator gives the universality of his goods.
- The legacy under a universal title : the testator bequeaths a share of his property.
- The particular legacy: the testator bequeaths a category of his property, or a specific asset.
Upon the testator’s death, the legatee becomes, in principle, the owner of the bequeathed property.
However, he must still take possession of the property to which he is entitled.
Certain legatees benefit from seizure by operation of law:
- all the legal heirs
- the universal legatee, if there are no reserved heirs, and if he derives his status from an authentic will,
- the executor designated by an authentic will may be given a special referral by the testator (C. civ., art. 1030 seq.).
These legatees are exempted from requesting the delivery of the legacy, and may take direct possession of the bequeathed property, without formality.
The situation is different for the other categories of legatees, who are often confronted with the rights of the heirs in the inheritance.
Who must request the delivery of a legacy ?
The universal legatee
- If there are heirs with rights of retention, the universal legatee owes the delivery of the legacy to them.
- In the absence of heirs with right of retention, there are two solutions:
- The will is authentic: no authorization is then necessary for the delivery of the legacy.
- The will is holographic or mystical: the universal legatee must go through the procedure of sending the will into possession; this is the procedure for controlling the holographic or mystical will instituting a universal legatee, in the absence of heirs with rights of retention.
Note: Before the law of November 18, 2016 on the modernization of justice in the 21st century, the sending in possession took the form of a petition before the President of the Judicial Court of the place where the inheritance was opened.
Since the entry into force of this law, for inheritances opened as of November 1, 2017, the control is done by the notary depositary of the will and in an extrajudicial manner.
Recourse to a judge is only necessary in the event of opposition by a third party to the exercise of the legatee’s rights. In this case, the judicial procedure of sending the legatee into possession in the form of a petition is used.
The legatee by universal title
A legatee by universal title must request delivery of his legacy to the other heirs: first to the heirs reserving the right, failing which to the universal legatees, and failing that to the legal heirs.
The legatee by particular title
The legatee by particular title must request the delivery of the property or properties, under the same conditions and in the same order as the legatee by universal title.
The request for delivery of the legacy is not subject to any formality at this stage.
The effects of the request for delivery
The legatee acquires recognition of his rights: he takes possession of the property and may collect the fruits and interests.
The heirs or legatees receiving the request for delivery of the legacy may oppose it.
In the absence of an amicable delivery, the legatee may apply to the judicial court of the place where the inheritance was opened, by way of a writ, to request the judicial delivery of his legacy.
Prescription of the action:
The law does not specify this, and the question is debated. Case law has not ruled on whether the 5-year time limit for personal or movable property actions, the 10-year time limit for exercising the option to inherit, or the 30-year time limit when the legacy relates to real property should apply.
The costs of the application for delivery
The costs of the application for delivery are to be borne by the inheritance, provided that the legal reserve is not affected.
Our lawyers are at your disposal to answer all your questions and advise you. Our meetings can be held in person or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Inheritance Department
09 72 34 24 72