Donations/gifts, wills, protecting vulnerable individuals
It’s important to anticipate the transfer of your property by making a donation when you’re still alive, or writing your last wishes in a will which will be executed when you die. If a member of your family is a vulnerable person, you can protect him or her to ensure he or she is provided for.
Donations / Gifts
Certain donations must be concluded before a Notaire (whereas for other types of donation it is not compulsory, only recommended, i.e. person-to-person cash gifts), namely:
• Real-estate donations;
• Donations included in a marriage contract;
• Donations between spouses which are similar to a legacy: the donated asset
• passes to the surviving spouse upon the death of the other spouse;
• Donation of assets in anticipation of the donor’s estate (“donation-partage”).
The Notaire’s advice is essential when planning a donation, as it often allows the donor to anticipate the organisation of his estate while he is still alive and pass on his assets in the most efficient tax and civil ways possible.
A donation concluded in front of a Notaire has all the advantages of an authentic notarial deed (incontestable proof, unquestionable date, conclusive force and legal validity).
A will is a document by which an adult person makes decisions and specifies his or her wishes in the event of his or her death.
There are several types of will. The authentic will is the safest: it is concluded before two witnesses or a second Notaire, and must be signed by the testator. The Notaire drafts the will dictated by the client. He then reads it out loud and the parties sign it.
There are also other types of will:
– “testament mystique” (written or dictated by the testator and sealed, and handed to
the Notaire in the presence of the Notaire): it is rarely used, and remains secret. The testator is
the only one who knows what it contains. Therefore, this means that the Notaire can not check
that the contents is legally correct, which is the major drawback of this type of will.
– holographic will: it is the most widely used type of will. It is written, dated and signed
by the testator. It is easy to draw up and inexpensive. However, it may sometimes be
challenged (or even cancelled) if it was not drafted with the assistance of a skilled legal
– international will: it is useful for foreigners living in France, for French nationals living
abroad or someone who owns property abroad. Once this will is drafted, it must be presented to
a French Notaire (or a consular agent if abroad) in the presence of two witnesses. It may be
written in any language.
Protecting vulnerable persons
In order to protect vulnerable persons’ material existence and guarantee their future, their assets must first of all be secured.
Purchasing real-estate property, for instance, may make it possible to guarantee a vulnerable person’s financial independence. Provided that this person can afford it, the property title can be transferred to him or her.
There are also other possibilities, such as a donation (with immediate effect) or a legacy (effective as of the death of the donor) if the person who needs protecting is a very young child. The donation may include a clause prohibiting the sale of the property or a clause providing that the property will revert to the donor if the vulnerable person dies without issue.
In any case, the rights of the other heirs must also be respected.
For this reason, if the vulnerable person is the donor’s child or grandchild, the Notaire will often suggest that the donor concludes a donation of assets in anticipation of the donor’s estate (“donation-partage”).