Donation-sharing: a solution that can resolve conflicts of succession
At the opening of the succession, heirs are undivided until the partition of the patrimony of the deceased between them.
Sharing may be delicate, where the heirs are unable to agree on the distribution of the different assets of the estate of the deceased.
The indivision agreements place the heirs conducive to conflict situations. Indeed how many times have we heard that Inheritors tore because of money?
The donation-sharing rule priori conflict: the property of the deceased are divided between the heirs of his lifetime.
- 1 The conditions for a donation-sharing are important
- 2 Donation-sharing: the important consequences during the succession
- 3 The benefits
- 3.1 FAQ
- 3.1.1 Is mandatory for all children?
- 3.1.2 What is the difference with other donations?
- 3.1.3 Can you keep the usufruct?
- 3.1.4 Should the property be equal?
- 3.1.5 And for small children?
- 3.1.6 Can reconstituted families organize a donation-partage?
- 3.1.7 donation-Partage or several gifts for the grandchildren?
- 3.1.8 And it costs how much?
- 3.2 article references:
- 3.3 Article 1076 et seq. of the civi code
- 3.1 FAQ
The conditions for a donation-sharing are important
Donation-sharing requires a notarial deed and implies a notary fee. Because it is an official document, it y of the conditions.
It is done in 2 ways. Only one, on your personal property or second case with your spouse, on your common goods and/or personal property of each (connective tissue known as donation-partage).
- for the benefit of the only heirs: children or grandchildren, if there are no descendants, the share donation can be established for the benefit of the other heirs (collateral). In short, any person can therefore make a donation-partage for the benefit of his heirs presomptifs1, i.e. those which there is reason to assume in advance that they will collect the succession (children, grandchildren, nephews) or its fine Children2. When assets include an individual or an associate company, the donation-partage is open to the aircraft3.
- with the consent of the heirs: this consent required to meet the needs of each, however descendants unanimity is not required. If a child does not accept the donation, it will be made with others on condition that their rights are respected.
- on present goods: gift sharing can cover future assets, insofar as the transfer takes place immediately. It can be made on the property of a parent or two (conjunctive donation-partage). In this case, it will include the assets of each of the spouses and the property of the community.
- However the donor can distribute as part of its heritage, reserving the other.
- It can also make a donation share only on the bare ownership, usufruct (and thus full ownership) being transmitted to recipients upon his death. This is the case for example if you wish to transfer the main house but still be able to live there.
Donation-sharing: the important consequences during the succession
In the absence of gift sharing, the estate of the deceased is divided on his death according to the legal rules.
Before the opening of the succession
Your beneficiaries become immediately and definitively given property owners. The share donation causes the immediate transmission of donated property.
After the opening of the succession
When settling your estate, if the donation-partage was not made in a balanced way, your heirs may challenge the value of assigned units.
In these circumstances, on the death of the donor, succession is only property not transmitted by donation-sharing.
The share donation should respect equality among the heirs.
Alternatively, the injured heir may challenge inequality on the death of the donor which may yet give rise to conflicts, especially if it y real estate:
- donated property are not reportable: in principle, the succession opens on the only property not passing at the donation-partage, but in case of unequal division, can take action to reduce in order to restore its rights,
- injured heir may bring an action in reduction: in this case, the amount of the legal reserve is calculated based on the value of the gift on the day of the donation sharing (regardless of subsequent changes). This is the most complex part.
Action to reduce is open for a period of 5 years from the opening of the succession or within a period of 2 years from the day where the heirs had knowledge of the infringement of their reserve, without ever being able to exceed 10 years from death (section 921 of the civil Code). (thanks Antoine for his comment)
Donation-sharing: calculate the rights of donation
The donation-sharing is subject to the same taxation as the donation.
Recipients fulfill therefore reduced after rebates donation duty.
The heirs are not subject to the payment of the rights of succession to property passed when the share donation because the people have not yet died.
In theory and in practice, except contrary will of the deceased expressed during previous donations or in the form of a testament, his heritage should be allocated according to the legal rules, in particular equally among his children.
If this equality is not respected at the time of death, the prior gifts must be added ('reported') to the estate to restore equality imposed by law. These reported donations are assessed on the day of the death and not on the day of the donation.
Similarly, every child is entitled to a minimum share of inheritance (the "reserve") of his parents and may bring an action "reduction" If the distribution of the property at the time of the death, taking into account the prior gifts, always valued at the day of the death, violates this right. Therefore, be careful giving a child more than the other.
The donation-partage helps to partly avoid these sulphurous situations since the property so passing may not be the subject of a report at the time of the death of the donor. In other words, the estate of the donor will be on his property at the time of the death, without taking account of a donation-partage property.
The donation-partage can embed, with the agreement of the beneficiary, any previous donations. They must not be added to the estate upon the death of the donor if the heirs equality is not respected.
And if one of the children takes steps to reduce, the calculation of its 'reserve' will take into account the value of these donations on the day of the donation-partage (and not on the day of death), except otherwise provided in the Act where the importance of the draft.
If you have not seen where I want to come, it's that donated property are permanently evaluated on the day of the donation-partage, so only the nominal value will be taken into account. What is very interesting for example by a company for your home accept value € 200,000, you give the shares to your heirs (bare), but your death the House worth 250,000 and ben not the value is taken on the day of the donation-sharing is 200 000 and there is a reduction not forget. Fiscally interesting no?
Another advantage: this action reduction will be liable only for a period of five years after death (instead of thirty years for a regular donation).
But the assessment of donation-partage estate will be made on the day of the death if action to reduce is committed by a child who did not participate in the donation-partage, because it has been excluded, either because he was not yet born.
The donation-partage allows any person, not only giving her lifetime certain assets to heirs, but yet to apportion among them all or part of its heritage.
- It operates a final Division of property given between its beneficiaries,
- This share cannot be questioned on the death of the donor;
- donated property are permanently evaluated on the day of the donation-partage, so only the nominal value will be taken into account.
A donation-partage on a sole proprietorship can be made to the descendants but also distant relatives or strangers to the family.
It therefore includes a better l´interet of the donation-sharing, and you qu´en do you think?
Is mandatory for all children?
No, this is not mandatory. Must be that children accept the proposed sharing, and if some refuse, it is possible to do the donation-partage only for others. In this case, we find ourselves in the same situation as in other donations: for the Division of property of the donor to his death, need to redo the accounts and update the value of the assets already transmitted during the donation-partage. Same principle when a new child is born as a donation-partage has already consented to his brothers and sisters elders.
What is the difference with other donations?
If a parent gives to one of his children or even transmitted to each property through various donations, should be then redo accounts at his estate. And, that day, to determine the inheritance of each kids share
However if the donation-partage brings together all of the children, that they each receive a lot and that parents do not keep the usufruct on a sum of money (see question 4), it is not necessary to reassess the property given to the death of the donor, regardless of the value that they can take or lose from here.
practical example: A father gave the same amount to each of his sons but one of them took the opportunity to buy an apartment – which has since double value-, while that one all spent at the casino, the first will be considered to have received double what his brother raised in donations simple, since this is what is today its housing. To compensate, there so right to a lower share than his brother on the legacy of their father so we can say that he is punished for having manage, imagine the conflicts.
In the worst cases, if this is not enough to allow his brother to touch his hand, he must even pay him a cash balance while he will spend it all in frivolities, and share something with him the capital gain realised on its housing. Fortunately, this calculation does play for sharing between the heirs! There is no fiscal impact because the rights of donation for the property in question have already been solved
Can you keep the usufruct?
Yes, in a donation-partage, it has the right to the same conditions as for other donations. It can therefore keep for him the usufruct of the property and even predict that her death this usufruct will return to his or her spouse. It can also set the future burden between himself (the beneficiary) and children (usufruit)
Should the property be equal?
No, they can be unequal if children agree.
And for small children?
A donation-partage can be expanded to the grandchildren. Often children are d´ja in a stable situation and need more capital so that small children if.
The "generational", authorized donation-partage since January 1, 2007. is a donation where the Division of property does not necessarily between children but by strain, since grandchildren peuventrecevoir of lots instead of children, if they so wish.
Can reconstituted families organize a donation-partage?
Yes, a married couple can, in a single act, organize a donation-partage between his children and those of another bed. This often makes more sense for the family and simplifies the constitution of lots, which would be more difficult if each parent should his side make a donation-partage between his only children. But, at the time of be shares of half-brothers and half-sisters, we must pay attention to taxation.
Donation rights depend on the blood ties. A parent can give to one of his children by blood (even if he was born of a previous union) a common property of the couple, although not fiscally penalizing. The child will benefit from the reduction of € 100,000 and the potential donation will be calculated according to the scale applicable between parent and child. SCIF considers that only its parent gave the property and that the spouse (even if it is also one-half of the property owner) intervened only to give its agreement.
The child has of course the same tax regime if it receives a good clean of its parent. On the other hand, should receive a personal property of his stepfather or stepmother because, due to lack of blood between them, he would then pay the rights of donation at the rate of 60%, and without any deduction.
In the case of donation-partage made with your spouse, you can make your common children or common.
However, in the case of non-common children, the following conditions must be met:
- Each spouse can give to her own children
- Non-communs children should not receive assets of their stepfather or stepmother
donation-Partage or several gifts for the grandchildren?
It depends. The consequences are different.
When the grandchildren receive goods in a donation-partage, they do place their parents ahead of the minimum portion of heritage which they are entitled by law (the reserve). Therefore, the grandparent remains free to assign to other people, to the spouse in particular, all the rest (the available quota). Freedom remains intact.
On the other hand, when a grandparent consent a specific grandchildren donation, it is outside the reserve, precisely on this available quota. This reduces the share that it may allow other people, including her husband. In addition, if the grandparent is too generous, it may no longer on his death a legacy enough so that all children have right to their reserve. Which would allow them to claim to grandchildren back what was given to them in too. Even if in practice the father rarely does a trial to her children to do this because they will make him regret later.
And it costs how much?
on the site https://www.service-public.fr/particuliers/vosdroits/F795
|Acts||Value of the property||Cost|
|Act of notoriety||€57.69 (€69.23 INCL. VAT)|
|Inventory||€76.92 (€92.31 INCL. VAT)|
|Certificate of ownership||Less than €3 120||€15.38 (€18.46 INCL. VAT)|
|Than €3 120||0.493% of the value of the property|
|Certificate of property
|From € 0 to € 6 500||1,972%|
|From € 6 500 to € 17,000||1,085%|
|From € 17 000 to € 30,000||0.740%|
|More than €30,000||0.742%|
|Declaration of succession||From € 0 to € 6 500||1,578%|
|From € 6 500 to € 17,000||0.868%|
|From € 17 000 to € 30,000||0.592%|
|More than €30,000||0.434 per cent|
|Distribution of the estate||From € 0 to € 6 500||4,931%|
|From € 6 500 to € 17,000||2,034%|
|From € 17 000 to € 60,000||1,356%|
|More than 60 €000||1.017%|
The notary can claim you money that him are not intended (disbursements, duties and taxes).
|Acts||Value of the property||Cost|
|Act of notoriety||€70.20 INCL. VAT|
|Inventory||€78 INCL. VAT|
|Certificate of ownership||Less than €1 524||€15.60|
|Than €1 524||0.50%|
|Certificate of property||From € 0 to € 6 500||0 g|
|From € 6 500 to € 17,000||1.10%|
|From € 17 000 to € 30,000||0.75%|
|More than €30,000||0.55%|
|Declaration of succession||From € 0 to € 6 500||1.60%|
|From € 6 500 to € 17,000||0.88%|
|From € 17 000 to € 30,000||0.60%|
|More than €30,000||0.44%|
|Distribution of the estate||From € 0 to € 6 500||4 D|
|From € 6 500 to € 17,000||2,0625%|
|From € 17 000 to € 30,000||1.375%|
|More than €30,000||1,03125%|
in the event of delivery on the transfer of property or of an interest in land, the sum of the collected fees cannot exceed 10% of the value of the property or right, without being less than €90.
REF tariff notaries
Commercial code: blogs L444-1 L444-7
Commercial code: article R444-1
Commercial code: blogs R444-59 to R444-70
Rates of notaries
Commercial code: sections A444-53 to A444-58
Rates of notaries
Decree No. 2016-230 of 26 February 2016 regarding the tariffs of some legal professionals
Application of rates established by Decree of February 26, 2016, during a transitional period of 2 years (article 12), entry into force (article 13)
Decree No. 78-262 March 1978 concerning the fixing of the tariff of notaries
Carried out before may 2016, or in the event of payment by the customer a deposit or a provision before March 2016
Order of February 26, 2016, establishing the regulated rates of notaries
Article 1076 et seq. of the civi code
- section 1075 of the civil Code.
- article 1076 – 1 of the civil Code.
- section 1075 – 2 of the civil Code.
- Civil code: articles 1075-1075-5 subjects (sections 1075 and 1075-1), property including an undertaking (section 1075-2)
- Civil code: articles 1076-1078-3 Donations-partages made to the heirs presumptive.
- Civil code: SKU 1078-4-1078-10 Donations-partages to descendants of degrees
I advise you to inquire with a specialist, i.e. a notary on http://www.notaires.fr/fr/annuaires-notaire (I'm not notary)
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