The Civil Code and wills
In France, almost 9 out of 10 Inheritances are settled without a will.
Although its name and usefulness are well known, a large majority of people do not draw up a will to express their last wishes.
To understand the value of a will, it is first necessary to understand the legal means by which the deceased’s estate will be passed on to the heirs in the absence of a will.
How is an inheritance settled in the absence of a will?
In the absence of a will, the rules laid down by the French Civil Code in 1804 will apply to ensure that heirs receive their share of the inheritance.
This system is commonly known as legal devolution, and is set out in articles 731 et seq. of the Civil Code.
The provisions of this regime apply in the absence of a will, and enable the deceased’s “next of kin” to inherit the estate.
Application of the Civil Code to inheritances in the absence of a will:
The law provides for equality between the various heirs, without taking into account the various emotional and subjective specificities that may link them individually to the deceased.
Designation of heirs by the Civil Code:
The law designates the heirs and will classify them in order of priority as follows:
- Children and their descendants;
- Parents, siblings and their descendants;
- Ascendants other than parents (grandparents, great-grandparents, etc.);
- Collaterals other than brothers and sisters and their descendants (uncles, aunts, cousins, etc.).
This order of inheritance is essential, as the designation of the first heir will exclude subsequent heirs.
According to this ranking, only heirs of the closest degree inherit, to the exclusion of all others.
For example, if the deceased has no children, the second-ranking heirs will be called. If they are still alive, heirs in ranks 3 and 4 will be automatically excluded from the inheritance.
It will therefore be impossible for a deceased person, by means of legal devolution, to have their children and siblings inherit, as in this case the entire inheritance will go solely to the children, excluding the siblings.
To get around this, the person concerned will have to draw up a will to this effect, which will enable them to divide up their estate and distribute it among heirs of different orders.
What about the deceased’s spouse?
The Civil Code does not forget the surviving spouse, and even gives the latter a prominent place.
The surviving spouse is not included in the ranking of heirs, as in every case they will inherit; within 3 months of the death, they must opt for either one-quarter full ownership, or full usufruct.
Note that this rule only applies in the case of marriage. If the deceased was living with a cohabiting or civil union partner, the surviving partner or cohabitee would be totally excluded from the inheritance. They might benefit from rights concerning the dwelling, but could not inherit any of the deceased’s property.
To protect your partner or cohabitee and ensure they inherit, it is essential to draw up a will.
Allocation of inheritance shares by law:
In the absence of testamentary provisions, the Civil Code will also allocate the deceased’s estate to the existing heirs.
There are several ways of doing this:
- If the deceased had children and an unmarried spouse, then the children will inherit the entire inheritance, regardless of whether there are other potential heirs, such as siblings of the deceased.
- If the deceased had joint children and a surviving spouse, the latter will have two options:
- Either choose to recover the usufruct of the entire inheritance, with the children inheriting bare ownership of the entire estate.
- Or choose to recover full ownership of ¼ of the inheritance. In this case, the children will inherit full ownership of ¾ of the inheritance.
- If the deceased had a child from a first union, the surviving spouse will automatically lose their inheritance option and inherit full ownership of ¼ of the estate.
- If the deceased had no children and a surviving spouse, it will be necessary to check whether the deceased’s parents are alive or not. If there are no parents, the surviving spouse will inherit the entire inheritance. Conversely, if only one parent is alive, that parent will inherit a quarter of the inheritance, leaving ¾ for the surviving spouse. If both parents are alive, the estate will be divided equally between the two parents and the surviving spouse.
Inheritance in the presence of a will :
It should be remembered that the system of legal devolution described above only applies in the absence of a will.
While the aim of this system is to ensure strict equality in the inheritance, the drafting of a will gives greater freedom to organize the distribution of one’s assets during one’s lifetime.
It is possible, for example, to grant a larger share to one of the heirs, to reduce the share of another, or even to choose who will inherit which property.
However, there is no such thing as absolute freedom. The drafter is subject to certain imperative rules, which, if not respected, may enable the heirs to contest the will.
If a will exists, it will replace the legal regime, provided it is valid.
A will must comply with the substantive and formal requirements of the Civil Code, which differ according to the form of the will.
There are 3 different forms of will:
- Holograph wills, which are written, dated and signed by the testator alone.
- The authentic will, drawn up by a notary in accordance with the testator’s wishes and kept by the same notary.
- The mystical will, which is a secret, sealed document drawn up by the testator’s own hand and entrusted to a notary for safekeeping. The contents of the deed will only be revealed on the death of the testator.
Whatever its form, the will must meet the imperative conditions laid down in the French Civil Code.
A testator cannot, for example, pass on their entire estate to just anyone. They must reserve a part of their estate for certain heirs known as “reservataires”, namely their children.
It is on the basis of this legal provision that it is forbidden to disinherit one’s children in France.
The testator must therefore ensure that the reserved portion of the estate is respected. The testator will only be able to pass on the available portion, i.e. the share of the estate that can be freely given away.
In conclusion, in the absence of a will, the rules laid down by the Civil Code will apply without being able to be modified. The clear advantage of drawing up a will is that you can organize your inheritance in advance. However, this freedom of the will is subject to the formalities laid down by the Civil Code, which is why the assistance of an expert lawyer in this field is highly recommended.
If you have any questions, our lawyers will be happy to advise you. Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Inheritance Department
09 72 34 24 72
Article written with the participation of Jérôme BAZELOT, student lawyer at the Ecole des Avocats du Grand Ouest. The Inheritance department of AGN AVOCATS would like to thank him for his contribution.
