If the testator dies, the heir has three options for dealing with the inheritance:
- Unrestricted acceptance or
- Acceptance with limitation of liability to the estate or
- Cancellation
In accordance with Art. 770 of the French Civil Code, the heir can only make his or her choice in this regard after the succession has taken place. French law does not allow the possibility of waiving inheritance, as is permitted under German law.
The potential heir has four months from the date of succession to make a declaration, Art. 771 I of the Civil Code. After this period, he or she may be requested to make a declaration, Art. 771 II of the Civil Code. If two months elapse after the request and the heir has not made a declaration, the acceptance of the inheritance - and therefore also all inheritance liabilities - is deemed to have been accepted, Art. 772 II of the Civil Code. The inheritance is deemed to have been accepted.
What is an unconditional acceptance of inheritance?
Unrestricted acceptance within the meaning of Art. 782 et seq. of the Civil Code means that the heir definitively assumes the rights and obligations of the deceased and the personal assets and the estate assets merge.
1. unrestricted acceptance for minors
A legal representative of a minor requires the prior consent of the family court to accept the inheritance (in accordance with Art. 387 I No. 5 of the Civil Code), as the acceptance could have potentially detrimental consequences for the minor.
If the minor is habitually resident in another member state of the European Union, the courts of the respective state have jurisdiction. These apply their own law in accordance with Art. 15 I of the Hague Convention on the Protection of Children (Hague Convention).
2. finality of the unqualified acceptance
Once the inheritance has been accepted, it can no longer be disclaimed, Art. 786 I Code civil.
Only within very narrow limits is it possible for the heirs to be exempted from the unrestricted acceptance of the inheritance liability incurred in accordance with Art. 786 II, III Code civil. The application for exemption from inheritance liability is successful before the French district court if:
- the heir was blamelessly unaware of the existence of estate liabilities at the time of acceptance of the inheritance and
- Settling the liabilities of the estate puts the heir's assets at serious risk.
The application must be made within five months of becoming aware of the existence of the estate liabilities.
3. procedure for unqualified acceptance
The declaration of acceptance can be either express or implied (Art. 782 p. 1 Code civil). An express declaration of acceptance is made in writing in the form of a public or private deed (Art. 782 S. 2 Code civil).
Implied acceptance can be seen in actions taken by the potential testator that necessarily imply that he or she accepts the inheritance (Art. 782 p. 3 of the Civil Code). An acceptance can not may be assumed if actions are taken that are matters of ongoing administration of the estate that are necessary to avert damage to the estate.
The receipt of rental payments, for example, cannot be regarded as an implied acceptance. In contrast, the sale of the property in the estate must be recognised as an acceptance.
What is meant by acceptance subject to limitation of liability?
The consequence of a conditional acceptance is that the estate assets and personal assets continue to exist separately and therefore creditors of the deceased cannot access the personal assets. This type of acceptance means that the community of heirs is only liable for estate liabilities in the amount of the estate's assets.
In practice, however, renunciation is most frequently chosen if there is a risk that the liabilities of the estate will exceed the assets of the estate.
1. declaration for minors
Acceptance subject to the limitation of liability does not constitute a pecuniary disadvantage for the minor, so the consent of the family court is not required.
2. possibility of conversion to unrestricted acceptance
As long as the right of acceptance has not lapsed (without request after 10 years from the occurrence of the inheritance), the acceptance can be revoked with limited liability and replaced by an unrestricted acceptance (Art. 801 I Code civil).
3. procedure for acceptance with limitation of liability
The acceptance with limitation of liability does not require any form. However, it is advisable to use the Forms the French government.
The declaration of acceptance must be sent to the registry of the French regional court (Tribunal de grande instance) or - for the departments of Bas-Rhin, Haut-Rhin and Moselle, where local law applies - the district court (Tribunal d'instance) of the deceased's last place of residence, otherwise to the court in whose district the property belonging to the estate is located. It can also be submitted before a notary.
In addition, an inventory of the estate, i.e. an inventory of the inheritance assets, must be drawn up by a court-appointed auctioneer, bailiff or notary. This must be submitted to the registry of the competent court within two months of receipt of the declaration of acceptance. However, an extension of the deadline may be granted. If this deadline expires, the heir will be treated as if he or she had accepted the inheritance unconditionally. A deliberately incorrect or incomplete declaration in the estate inventory also leads to unconditional acceptance of the inheritance.
The inventory of the estate is published in the official gazette for civil and commercial matters for the purpose of informing the creditors of the estate. The potential heir must advance the costs incurred for this, but this constitutes a liability of the estate (Art. 803 of the Civil Code).
Creditors of the estate have 15 months from the publication of the estate inventory to register their claims (Art. 792 II of the Civil Code). This is done by notifying the heirs at their place of residence. Once this period has elapsed, undeclared debts of the estate lapse if they have not been collateralised by individual items of the estate. During this period, the heir can also decide to keep individual items of the estate or to sell them. The corresponding value must be entered in the estate inventory.
How is the inheritance disclaimed?
The waiving party is treated as if he had never become an heir, Art. 805 I of the Civil Code. They are not liable for the debts of the estate, but may be required to pay the funeral costs depending on their financial situation, Art. 806 of the Civil Code.
1. cancellation for minors
A legal representative of a minor requires the prior consent of the family court for the waiver (Art. 387 I No. 4 Code civil).
2. finality of the cancellation
Within the ten-year limitation period, the disclaiming party may declare unconditional acceptance if no other heir has accepted the inheritance in the meantime.
3. procedure for the cancellation
The waiver must be submitted to the tribunal de grande instance or a notary. It can also be made orally, but must be expressly stated, Art. 804 I Code civil.