Why should you consult an Inheritance Lawyer?
It can be very helpful to have an inheritance lawyer on your side, even when you are not in litigation.
Whether it is for advice, or during the settlement phase of the inheritance, the use of a lawyer can be invaluable.
Anticipating the inheritance
It is essential to organize the transmission of one’s assets during one’s lifetime.
The first way to do this is to draw up a precise will, which can take different forms (authentic, holographic or mystical).
In the absence of a will, it is the law that designates the heirs and determines their order of priority in the inheritance, according to the legal devolution.
In order to keep control of one’s inheritance, it is therefore necessary to draw up a will.
Its content must take into account several factors, such as the testator’s matrimonial regime.
The testator can bequeath all or part of his property by three main categories of bequests:
- The universal legacy: the universal legatee will receive the entire inheritance and will be bound by an indefinite obligation to pay the debts.
- The legacy by universal title: The legatee by universal title will receive only a part of the deceased’s estate, for example a share of the property, a category of property (all the furniture), or the legacy of a share of a category of property.
- The particular legacy: The particular legatee is the one who will receive the legacy of one or several specific assets (for example: the car, a second home…).
The testator can also benefit one of his children by bequeathing the available portion of the inheritance, i.e. the portion of the inheritance that is not part of the reserved portion.
Inheritance reserve is the part of the inheritance that must go to the “reserved heirs”, i.e. the descendants of the deceased or, failing that, the surviving spouse.
The available portion is the part of the inheritance that is not part of the reserved portion and that the deceased can freely dispose of.
In order to avoid a bequest being challenged after the death, it is therefore necessary to take into account these two masses.
It is also quite possible for a legacy to contain one or more conditions imposed by the testator: the legacy is then said to be “burdened” or “affected” by one or more inheritance charges.
In addition to the testamentary way, the transmission of one’s patrimony can go through the gratification of donations.
However, between remunerative donation, shared donation, simple donation…it can be difficult to know which one to choose.
These differences must be carefully studied, and the help of a lawyer can turn out to be very useful to make the right choice.
For example, the distinction between a shared donation and a simple donation has several important implications: while a simple donation is presumed to be included in the inheritance, a shared donation is never included. Another fundamental difference: the appraisal of the donated property will be taken into account on the day of the donor’s death in the case of a simple donation, whereas it will be taken into account on the day of the deed for a shared donation.
The lawyer, in his counseling role, must of course take into account the optimization of the inheritance tax: for example, he can guide his client towards the constitution of a quasi-usufruct, or a transgenerational-shared donation, which allows grandparents to organize their inheritance directly for the benefit of their grandchildren, and to benefit from a reduced tax rate.
In the presence of a family business, the lawyer, after auditing your situation, can also inform you about the possibility of transmitting via the “Family Buy Out” scheme, and thus benefiting from the DUTREIL scheme and its 75% deduction on the value of the securities transmitted.
Finally, it can be clever to transfer your real estate assets through a real estate company.
Upon death, the Inheritance lawyer is competent to assist you during the phase known as the settlement of the inheritance.
Settling the inheritance
This settlement phase is characterized by several steps, which can be complicated and made endless by numerous elements.
- The determination of the heirs, either by means of an act of notoriety (act established by a notary) or by a certificate of inheritance for a simple inheritance (less than 5.000 € of assets);
- The liquidation of the matrimonial regime (if the deceased was married);
- If there is a will, the notary will open it and describe its content;
- The choice of the option for the beneficiaries, i.e. the surviving spouse, the heirs and the legatees.
It is not always easy to know which option to choose.
Indeed, depending on the situation, it may be preferable for the surviving spouse to opt either for the totality of the existing assets in usufruct, or for one quarter of the existing assets in full ownership (mandatory choice in the presence of children from a first marriage).
The heirs have three options:
- Renounce the inheritance;
- Accept the inheritance up to the net assets;
- Accept the inheritance outright.
- The civil liquidation of the Inheritance: this consists of determining the composition of the inheritance, i.e. the assets and liabilities, while taking into account the matrimonial regime of the deceased, previous donations and sometimes life insurance contracts to determine the mass of property that belongs to each heir;
- The tax settlement of the inheritance: this involves the calculation of the inheritance tax and the payment of the tax by the heirs and/or legatees.
- Finally, the sharing of the inheritance will organize the distribution of the estate assets between the co-heirs and put an end to the joint possession.
In addition to ensuring the exchanges or negotiations with the various parties (notary, co-heirs…), the role of the lawyer specialized in Inheritance law is to accompany and counsel you in each of these steps, while ensuring that your rights are respected.
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