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Step 1: Opening the succession

Home > International Estate | Published 2010-12-30

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The reasons for opening a succession

An inheritance is triggered, as noted at the end of Article 720 of the Civil Code, by death and involves the last residence in which said individual occupied. This remains the first and principal cause of the initiation of an inheritance. Nevertheless, other causes of opening a succession do exist.

Before 2001, a provision in the Civil Code articulated that a case of succession is not only triggered by natural death but also by civil death; or the forfeiture of the rights and privileges of an individual who has been convicted of a serious crime. Civil death was once a mark of degradation that punished those convicted with serious and long-term criminal sentences; this was repealed by a law passed on May 31, 1804.

Two additional reasons for opening an inheritance are incredibly relevant in the modern world, specifically in the event of a natural death. These stem from the absence or disappearance of the deceased.

A disappearance is, under Article 88 paragraph 1 of the Civil Code, under certain conditions, a valid reason for opening a succession. A legal declaration of death must be obtained. This is issued by the judge when a person has disappeared under circumstances which have put his life in danger and in which case the body cannot be located. A declaration of presumed death will be offered in place of a more definitive certificate of death.

On the other hand, an “absence” is defined and articulated in Article 128 of the Civil Code. This refers to the circumstances concerning an individual whose whereabouts are entirely unknown. There must be no doubt, in this case, that said individual is facing mortal peril. A judgment confirming an individual’s absence may be granted after the passing of ten years since the missing person notification was filed.

Nevertheless, it must be noted that the last two triggers of an inheritance are not definitive or certain by any means. Until all uncertainty has been dismissed and the whereabouts of the deceased have been confirmed, the succession of an inheritance may be retroactively cancelled.

The date and place of opening the succession

A succession is considered open starting at the moment of death explicitly stated on the death certificate. This date carries a specific importance since it commences joint action in the event that multiple heirs exist and lay claim to a piece of the inheritance. The law applicable to the succession will be in effect at the time of the opening of the succession.

The date a succession is opened also enables an understanding of the specific heirs designated to succeed the deceased. In essence, the heirs are the individuals who are alive at the moment of a succession’s opening, as well as those who have been conceived but not yet born.

More specifically, the time of death is a deciding factor in the event of “simultaneous death,” which quickly reveals several limits in the administration of a matter of inheritance. Article 725-1 of the Civil Code, introduced to the law on December 3, 2001, provides that the order of death must be established by any means in the event that two individuals died in the same fatal event. “If the order of death cannot be determined, the inheritance of each heir is distributed without the other parties being identified.” Therefore, successions are adjusted on a case by case basis. However, article 725-1 paragraph 3 of the Civil Code offers an exception and representation of the deceased by one of the heirs in the event that “one of the co-deceased designates one of the heirs as an agent who may represent their interests in the inheritance matters, before their death.” This alternative offers, by means of representation, an heir that had in principle been removed from the matter, the opportunity to represent a deceased individual in competition for the succession of an inheritance.

The location of an opened estate, according to Article 720 of the Civil Code, is the last domicile of the deceased. This determines territorial jurisdiction of the court that will be relevant in any disputes or claims of heirs or creditors.

The characteristics of an heir: without indignity

A number of conditions must be met in order to claim an heritance. Firstly, the heir must, according to article 725 of the Civil Code, be alive at the moment the succession was opened or conceived but not yet born.

Additionally, it is essential that the heir be worthy and deserving, without having committed any grave wrongdoing against the deceased. This mandates a forfeiture of inheritance rights and is subject to private penalty (Cass. Civ 1st December 18, 1984). The indignity clause is explained in the 1804 Civil Code under section 727; which also covers and explores three cases.

Those considered unworthy may include any individual condemned for having murdered or attempted to murder the deceased, thereby demonstrating the intention to murder the party in question. He or she must have possessed an intention to kill, regardless of whether it was premeditated or not.

The second instance involves those who have been convicted of slanderous action punishable by death. In fact, in this instance the idea of “unworthiness” is obsolete as their criminal convictions remain the focal point.

The final instance of unworthiness unfolds when an heir was cognizant of the murder of the deceased and did not inform the police.

The law of 2001 reformed these cases of indignity and reinforced their application.

The two most serious cases of unworthiness operate in their own rights; therefore, the intervention of a judge in order to announce the presence of indignity is not necessary.

Specifically, article 726 of the Civil Code applies to those who are convicted as a perpetrator or accomplice to a criminal offense for willfully attempting or succeeding in killing the deceased. Contrary to the former regulations, complicity to commit murder is punishable to the same degree as indignity. Sentencing is necessary in the event of a presumption of innocence; therefore a trial can automatically entail indignity.

The second instance of an heir’s unworthiness emerges when an individual is convicted as a perpetrator or accomplice, with criminal punishment, of deliberately striking the other party, committing a violent act or assault that ultimately resulted in the death of the deceased, even without any intention to kill.

At the end of article 727, the Civil Code explains the subject of “optional indignity” which requires specific orders from the High Court which must be prompted by an heir on the side of the prosecution, within six months after the death or of the sentence (if after the death). There are five applicable instances of optional indignity. It is therefore possible to declare the following as unworthy:

  • The perpetrator or accomplice has been convicted of a misdemeanor for willfully attempting to commit suicide because of extenuating circumstances,
  • The accomplice has been convicted of a misdemeanor for assault and battery causing death without intention,
  • One who is convicted of false witness against the deceased in a criminal proceeding,
  • One who has been convicted of a misdemeanor 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 aiding the person in danger),
  • One who has been convicted of a misdemeanor for false accusation against the deceased when a criminal penalty was incurred,

The indignity of an heir carries 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, in which case he retroactively loses his status as heir. However, Article 728 of the Civil Code recognizes a form of forgiveness when the deceased, up until their death, is aware of said heir’s indignity and decides, by choice, to maintain their rights of indignity.

Then, according to Article 729 of the Civil Code, the unworthy must return all objects which they have acquired from the estate, in addition to all profits and revenues associated with those assets. This individual, however, is entitled to total reimbursement of the debts he has paid off.

The debarred is not only excluded from the succession of one to whom he is unworthy, but is also disqualified from any inheritance of the estates of other members of his family. If the disinherited person were to consider an inheritance from his grandfather’s estate by representation of his deceased father, said individual will still be deemed unworthy because he has disgraced his grandfather.

As for the children of the unworthy, they are not affected by the indignity of their parent. Before 2001, children of disinherited heirs could not represent their “unworthy” parent in any inheritance from their deceased grandparents. However, the 2001 sub argument to articles 729-1 and 755 of the Civil Code stipulates that children of the unworthy are not excluded by the fault of the perpetrator, whether they are to inherit on their own or whether they inherit assets from the estate via personal representative.

Representation of a disinherited heir is now possible, as explored in two specific regulations found within article 729-1 of the Civil Code:

  • On one hand, the parents possess, in principle, the right to benefit from the assets and inheritance of their underage children; however, in this case utilization of the assets of their children is withdrawn from a disinherited mother or father.
  • On the other hand, article 755 paragraph 2 of the Civil Code states that “the children of a disinherited heir, deemed as such before the opening of a succession which the debarred has been excluded entirely from the succession of any and all assets which they had inherited in their place in the event that they must compete with other children conceived after the opening of the first succession. This rule of equity will allocate the estate of the deceased to the children born after a disinherited heir.

The existence of an inheritance

The power of inheritance necessitates that an individual be entitled to receive said inheritance, thereby distinguishing heirs and non-heirs. 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, distant relatives, and those not included directly in a family’s lineage.

When deciding matters of estate administration, it is important to distinguish between kinship and alliances. Only a direct relationship (blood or marital) creates an heir. Among allies, there is a unilateral obligation to maintain relations because essentially no inheritance is mandated.

Before the law of 2001 was passed, this principle was contained within article 755 of the old Civil Code: in cases involving direct familial links, there is no limit to an inheritance. However, in a less direct familial relationship, the judge creates a limit with the sixth cousin in the collateral line. There existed exceptions to this law for brothers and sisters of the deceased for which there was no limit to an inheritance.

A second specificity relates to the collateral unit until the 12th degree in the presence of a minor less than 16 years of age, who must declare themselves unable to test. Therefore, it is possible a family member beyond the sixth degree of a familial line to inherit assets of an estate, but this must be done through a will and legal testament. If the individual in question is under 16 years of age and is beyond the sixth degree of a collateral line, it is impossible to benefit from an inheritance.

The law of 2001 abolished, in article 745 of the Civil Code, these exceptions: therefore, currently the collateral does not exceed a sixth degree family member, even if they are privileged collaterals. The family structure has therefore been narrowed.

Spousal inheritance has been increasingly recognized. The Act passed on June 23, 2006 has improved the rights of the surviving partner in housing, since they now have the right, in the event of the death of his or her partner, to stay in the accommodation belonging to their partner before death. 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 allow the surviving spouse to inherit some assets along with the PACS partner, provided that there was an official last will and testament formalized before death. (Article 790 O of the CGI).

In the case of divorce or separation, the 2006 Act provides in section 732 of the new Civil Code that the current spouse is the successor, not the divorced spouse. If a separation or divorce is still pending with the decedent’s spouse, the spouse remains the successor. Only a finalized divorce settlement terminates an inheritance.

This article is available online for public information purposes. It is updated regularly, as needed. Due to the constant evolution of the laws and the legal system, we cannot guarantee that the information in this article is still applicable. We invite you to contact us with any legal questions or concerns you have regarding this topic at +33 1 56 79 11 00. In no way can this firm be held liable for articles that contain inaccuracies or are now out of date.

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