I would like to start with two areas where French procedure is wholly at variance with what happens in the UK:

Evidence provided by the State

The written word is revered in France and great respect is shown for the etat civil which means that no steps can be taken without the deceased’s death certificate being given to the notaire along with the following evidence for the deceased, his children and any beneficiaries:

• Passport
• Death certificate
• Birth certificate
• Marriage certificate

In order to draft the necessary deeds, particularly where there may be real property, the notaire will also need to know the following about any children and beneficiaries:

• Their profession
• Address
• Full marital status, including details of any previous marriages and divorces

A system of succession but not administration

In France the estate is vested on death in the beneficiaries from the moment of death. There is no equivalent to the English system of personal representatives in whom the title to the deceased’s assets is vested whilst they conduct the administration of the estate. The lack of personal representatives in France will affect the speed of administration of the French estate as all beneficiaries are equally entitled to administer the estate and so can appoint their own notaire in the absence of agreement over the appointment of one. The appointment of an ‘executor’ in France is merely supervisory to ensure the terms of the Will are carried out and personal property managed in order to pay any debts. The appointment is only for a limited period of time.”

Therefore the legal system combined with other factors will ensure delays in every case: the lack of personal representatives, family quarrels, difficulties in obtaining information from the various authorities, banks and individuals the notaire will need to contact, a tradition of putting estate files at the bottom of the in-tray (while purchases takes priority due to obvious deadlines), and cross-border elements which will cause the non familiar notaire to ask the Cridon (a body of expert notaires giving legal opinions) for confirmation on specific points (e.g. if a foreign beneficiary waives their entrenched right, what tribunal would be competent to receive the declaration?).   

I cannot stress enough that out of all dealings with French notaires, the settlement of estates is the most frustrating for the English advisers and their clients, and I can only recommend seeking assistance for the avoidance of misunderstandings and further delays.

I will now outline the procedure for winding up an estate in France in three stages, assuming the deceased is not a French National.

1. Documents and information to be given to the Notaire

The Notaire will not be able to settle the estate of a person without the assistance of the family in identifying the assets comprised in the estate and the family members of the deceased. 

Indeed, due to the existence of entrenched rights of succession for the benefit of the deceased's children, the notaire will depend on the surviving family to confirm the number of children left by the deceased, and whether they are from current or past relationships or adopted.  A French born person would have a Livret de Famille, ie. a family book which records all births and deaths of any children.  If a member of the family who has inherited a share is missing or the Notaire believes that the deceased may have other children from another relationship, a Genealogist will be appointed to track down any heir who might benefit from a right in the estate.

The notaire will also check the property regime of the couple if the deceased leaves a spouse.  Indeed, it must be remembered that every couple married under French law has a regime matrimonial.  A British couple could well be married under French law, and hence have a matrimonial property regime, if their first marital home was France after the wedding (whether the latter took place in England or elsewhere is irrelevant) or if they varied their initial property regime to choose a French one in order to cover their French house for instance.  This is a complicated topic which I will not develop here. Suffice it to say that some assets may be deemed to belong to the surviving spouse even if they are in the sole name of the deceased or even if there are heirs, so the regime has a direct impact on what the composition of the estate.

The notaire will also ask if there is any Will, French or English.  The notaire will check if any specific bequests encroach upon the reserved rights of the children and proceed with the bequest only up to the free portion of the estate.  For instance, if an English Will attributed the deceased's share in the French holiday house to the surviving spouse, the notaire will have to construe this provision as meaning that the free portion only should be given to the spouse, while the balance would go to the children. 

Once the beneficiaries are identified, the Notaire will draw up an estimated inventory of the deceased’s estate, listing the assets making up the estate (worldwide assets if the deceased was a French resident, or the French realty only if the deceased was not a French resident) and the liabilities.  He will also determine the heirs’ liabilities for inheritance tax.

The family should provide copies of title deeds, bank statements, savings, and any outstanding debts (utility bills, mortgages, funeral fees).  At that stage the notaire may undertake urgent action on behalf of the estate to protect it against any open procedure (injunction, auctions).  The notaire will contact Banks and other relevant companies and require a complete breakdown of the accounts, bonds and debts in the name of the deceased at the time of his death.

Unlike in England, heirs can find themselves personally liable for the deceased's debts so the notaire should also explain to the beneficiaries the options they have to accept or refuse the estate (e.g. unconditional acceptance where the heir is liable for debts without limits, or acceptance upon formal inventory so the extent of the liability is the assets of the estate).

When the deceased is a French resident the Tax Administration allows a period of 6 months for the heirs to pay the taxes.  At the expiry of this period penalties will be added to the overall inheritance tax.  Therefore it is important to instruct the Notaire as soon as possible and help him to resolve any probate issues within this time scale. The delay is extended to 12 months if the deceased was a non-resident of France.

2. The preparation of legal deeds and Estate accounts

The notaire will prepare various legal documents.  The beneficiaries of the estate do not have to attend the signing meeting and can sign a power of attorney giving authority to the notaire's clerk to sign on their behalf.

Acte de notoriété

The first document prepared by the notary is the acte de notoriété which sets out the list of the people entitled to an inheritance and their respective rights in accordance with the Will and the Statutory rules of inheritance.

This will be produced to the bank(s) to close the account(s) and release any funds. 

Heirs who may not have access to the deceased’s last residence may be concerned that the beneficiaries of the estate will remove various personal items. In that case the Notaire and a commisseur priseur (auctioneer) at the deceased’s domicile will carry out an inventory.  The acte d’inventaire will replace the acte de notoriété.

Attestation Immobilière

The Notaire then prepares and files a real estate certificate in order to prove that the title of the property has passed to the deceased’s beneficiaries/ legatees.  It has the same effect as an Assent by an Executor although the purpose is to update the records at the Land Registry rather than to complete title.  It is necessary even if the property is due to be sold by the heirs.

Déclaration de succession

This document does not have to be drafted by a Notaire. However, it is advisable that a professional should complete the form, calculate the death duties payable by each beneficiary and lodge the form with the French revenue.  The death duties are not paid from the estate and are a personal liability of the beneficiaries jointly. 

3. The distribution of the estate

The beneficiaries other than specific legatees will have to decide between remaining joint owners or to   have the distributable assets "partitioned" (partage) to put an end to the state of joint ownership called indivision.  The distribution can be made by consent or by the Court, although the latter should be avoided because in the last resort, the matter will be settled by the drawing of lots.

To conclude, the French process suffers from the lack of personal representatives and caution must be exercised when the extent of the debts are not really known.  The beneficiaries should be warned against taking any decisions which would show an implied acceptance of the estate unconditionally. 

© Marie Slavov - Blake Lapthorn

December 2011

Marie Slavov is an Avocat with Blake Lapthorn

Email: marie.slavov@bllaw.co.uk

Tel:023 9253 0346