Step 1: Opening the succession

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The causes of succession’s opening:

The devolution is triggered at the end of Article 720 of the Civil Code by the death last domicile of the deceased. This is the first and foremost because of the opening of the succession. Yet other reasons for opening exist.

Before 2001 was in the Civil Code a provision obsolete by including in cases of succession not only natural but also death civil death. The death was a civil forfeiture that struck the criminal sentences to life imprisonment which was repealed by Act of May 31, 1804.

Two other causes opening of the succession is still current, however, beyond the natural death. It is the absence and loss.

The disappearance is under Article 88 paragraph 1 of the Civil Code, a cause of opening of succession to certain conditions. A judicial declaration of death must be obtained. It is issued by the judge when a person has disappeared under circumstances which put his life in danger and that his body could not be found. The declaration of death will then be given the death certificate.

The absence, on the other hand, is provided by Article 128 of the Civil Code. This is the situation regarding a person absent without anyone knowing where she is. There is no question in this case, the circumstances threatening. Judgments of declaration of absence may be granted after a period of ten years after the declaration of absence. This trial will be death certificate and carry the consequences of death, that is to say the devolution.

However, it should be noted that in these last two situations, the devolution is not final. Since the existence of the absentee or disappeared proven devolution of property is retroactively canceled.

The date and place of opening of the succession

The succession opens at death which is specified by the death certificate. This date is of some importance since it opens the undivided if several heirs exist, and the devolution occurs. The law applicable to the succession will be in effect at the time of the opening of the succession.

The opening date of the succession also lets you know who the heirs are called to succeed the deceased. Indeed, the heirs are persons living at the time of the opening as well as those designed without being born.

The date and particularly the time of death is important information in the case of "commorientes" but quickly show their limitations. Article 725-1 of the Civil Code, introduced by the Act of December 3, 2001 provides that the order of death is established by any means when two people died in the same event. "If this order can not be determined the sequence of each is devolved without the other will be named." Successions are then adjusted independently of one another. However, Article 725-1 paragraph 3 household an exception that if "one of codécédés leaves issue they can represent their author's estate when the other representation is permitted." This solution allows, for representation, an heir ousted in principle represent a commorientes to compete to succeed another.

The place of opening of the estate, according to Article 720 of the Civil Code, the last place of domicile of the deceased. Determines the place of opening the court with territorial jurisdiction in any disputes or claims of heirs or creditors.

The heir: no indignity

 A number of qualities are required for a claim to inherit. It must, first as heir exists, that is to say, according to Article 725 of the Civil Code, exist at the instant of the opening of the estate or have already conceived and born viable .

 Then it is necessary that the heir is not rendered unworthy. This is a forfeiture of inheritance rights is a private penalty (Cass. Civ 1st December 18, 1984). In the code of 1804 was the indignity under section 727 and covering three cases.

 Was thus unworthy to succeed him who was condemned to death for giving or attempting to kill the deceased, it was only the murder or attempted murder. He had an intent to kill, no matter that there was intent or not.

 The second case is the one who had a slanderous accusation punishable by death. In fact, the case of unworthiness is obsolete.

 The third struck the heir of unworthiness cognizant of the murder of the deceased and had not informed the police.

 The 2001 Act reformed the case of unworthiness in the building.

 The two most serious cases of unworthiness operate automatically, the intervention of the judge to pronounce the indignity is not necessary.

 According to Article 726 of the Civil Code that applies to one who is convicted as a perpetrator or accomplice to a criminal penalty for willfully or attempting to kill the deceased. Unlike the former provision is punishable as complicity indignity. The sentence is necessary because of the presumption of innocence, trial automatically entail indignity.

 The second case of unworthiness right about the person convicted as a perpetrator or accomplice to a criminal penalty for deliberately striking, for the violence or assault causing the death of the deceased with no intention of giving it.

 At the end of Article 727 of the Civil Code there is also the case of optional indignity that must be specifically ordered by the High Court is seized by an heir, either by the prosecution within six months after the death or the sentence if it is after death. These cases are five in number. Are declared unworthy

 - The author or accomplice sentenced to a misdemeanor for willfully or attempting to commit suicide because of extenuating circumstances

- Accomplice sentenced to a misdemeanor assault and battery causing death without intention to give

- One who is convicted of false witness against the deceased in a criminal proceeding,

- He who is convicted for having voluntarily refrained from preventing a crime against the physical integrity of the deceased which resulted in death when he could do so without risk to himself or others (not to support person in danger)

- One who is convicted of false accusation against the deceased when a criminal penalty was incurred

 The indignity of the heir to carry a number of consequences for the unworthy and his descendants.

 First, as to the unworthy, Article 726 of the Civil Code provides for exclusion from the succession, he loses retroactively heirship. However, Article 728 of the Civil Code recognizes a form of forgiveness when the deceased, after the facts, is aware of the cause of unworthiness and decides, by will, to maintain its rights in the unworthy.

 Then, according to Article 729 of the Civil Code, the unworthy must return all objects which are possibly in possession, and all the fruits and revenues associated with those assets. It is however entitled to reimbursement of the debts he has paid.

 The unworthy is possible that the succession of one to whom he is unworthy and not the estates of other members of his family. The unworthy may even come to the estate of his grandfather represented by his father predeceased he is unworthy as it is not unworthy of respect to his grandfather.

 As for the children of the unworthy, they are not affected by the indignity of their parent. Before 2001 children from unworthy could not represent their parent unworthy to inherit from their deceased grandparents. However, the 2001 Act to Articles 729-1 and 755 of the Civil Code stipulates that children of the unworthy are not excluded by the fault of the author, whether they are to succeed on their own or that 'they come to play by the estate of personal representative.

 The representation of a worthless is possible today, two particular rules, however, under Article 729-1 of the Civil Code:

 On the one hand, parents have in principle a right to use property of the minor child, but in this particular case the enjoyment of their children's property is withdrawn from unworthy parents.

 On the other hand, article 755 para 2 of the Civil Code states that "children of the unworthy designed before the opening of the estate which has been ruled unfit to relate the succession of the latter property that they had inherited in his place if they come into competition with other children conceived after the opening of the first succession "is a rule of equity, which will report the estate of the deceased to the inheritance of children born after the parent unfit.

 The existence of an inheritance

To inherit must be enabled to receive the inheritance gold everyone is not designated by law as having to inherit. This determination of the people who are destined to collect the estate reflects a certain vision of the family: there is no inheritance between civil partnerships or partners, the family estate and narrower than the family heritage.

There is a difference, first, between kinship and alliance. Only the relationship creates an inheritance. Among allies there is a support obligation that is because there is no unilateral, in turn, inherit.

 Before the 2001 law the principle was contained in former section 755 of the Code Civil: direct line there was no limit to the inheritance, however in the collateral line between the boundary cousin was six degree (up the cousin). There was a derogation of the law to the brothers and sisters of the deceased there was no limit to the inheritance.

A second limitation relates to the collateral until the 12th degree in the presence of a minor under 16 years is to say an inability to test. Indeed, it is possible to benefit a person beyond the sixth degree, but only through a will, however, the age of 16 with assets could not benefit a person beyond the 6th level since it could not be tested.

The 2001 law abolished, in an article 745 of the Civil Code, these exceptions: the collateral does not succeed beyond the 6th grade, even if they are privileged collaterals. The family structure has narrowed.

 The resulting inheritance of Matrimony is gradually recognized. The Act of June 23, 2006 has improved the rights of the surviving partner on housing, since it now allowed, the death of his partner, apply to stay in accommodation that belonged to his own partner predeceased. The surviving spouse is also entitled, for economic reasons, to seek preferential allocation of some goods (such as a company for example).

From a tax perspective the TEPA Act of August 21, 2007 also includes a number of measures to devote some of the surviving spouse to inherit but also PACS partner, provided that there was a will. (Article 790 O of the CGI).

 Regarding the cases of divorce or separation, the 2006 Act provides in section 732 of the new Civil Code that the spouse is the successor not divorced spouse. The spouse against whom there is a separation or divorce is still pending successor, only the divorce terminates the inheritance.

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