Will allows preparing your succession and organizing transmission of your assets. It can take various forms. It allows planning distribution of assets different from that provided by law but within respect of mandatory provisions. It remains best means to protect oneself, especially for unmarried persons. Only a will can make your PACS partner inherit.
Why draft a will?
Will is a written act by which a person makes decisions and specifies his wishes for period following his death.
By will, it is possible to:
- — organize transmission or distribution of your estate and designate beneficiaries (spouse, partner, cohabitant, child, friend or association) within limit of what law authorizes;
- — designate one or more executors responsible for ensuring proper execution of your last wishes;
- — settle personal questions: for example, indicate person who will be in charge of caring for your children in case of death while they are still minors;
What are conditions to make a will?
Will must reflect free and enlightened will of its author. To be valid, testator must be of sound mind and express consent free from any defect.
Be of sound mind
Law requires testator to be 'of sound mind' (C. civ. art. 901), must be able to understand scope of his decisions.
- — A non-emancipated minor cannot consent legacies; however if over 16, can do so, but only on half of what he could have disposed of by will if adult (C. civ. art. 904, al. 1).
- — Existence of legal protection measure, such as guardianship, does not necessarily prevent making will (C. civ. art. 476). However, such measure may constitute indication of alteration of mental faculties.
Give consent not vitiated
Will can be annulled if testator's consent has been vitiated by error, fraud or violence (C. civ. art. 901).
- — Error consists in being mistaken about determining element, for example thing or person of beneficiary.
- — Fraud corresponds to maneuvers or lies intended to deceive testator.
- — Finally, violence can be physical or moral and leads person to consent under duress.
What are advantages of authentic will?
There are several forms of wills allowing person to indicate his last wishes provisions. However, authentic will is safest.
Established by notary in presence of two witnesses or second notary, notary drafts himself text of will under dictation of client. He then reads it and notary as well as testator affix signature.
Authentic will is effective means to ensure forms required by law will be respected (having regard in particular to identity of testator, clear and complete expression of his wishes, respect of dictation provisions, reading by notary, and mandatory mentions such as date and signature). In this respect, validity of this document can only very rarely be questioned.
To know: Notary welcomes in principle his clientele and receives his deeds habitually in premises of his office. He may however, exceptionally, receive clients outside his office, especially at domicile or in hospital establishments.
In what cases is authentic will mandatory?
Recourse to authentic will is mandatory when testator:
- — wants to recognize natural child by testamentary means;
- — wants to remove from spouse rights of habitation and use on marital home and its furniture (C. civ. art. 764);
- — cannot or can no longer write or sign himself;
- — is deaf or mute or not knowing how to speak French (C. civ. art. 972).
Non-French speaking parties
When testator cannot express himself in French, dictation and reading of will are carried out by sworn interpreter in language of interested party.
What are other forms of will?
Mystic will
Mystic will presents advantage of remaining secret. Its author delivers it to notary in closed envelope, in presence of two witnesses (C. civ. art. 976). He is only one to know content. Therefore, notary cannot verify its legal effectiveness. It is major drawback of this form of will and explains it is rarely used.
Holographic will
Holographic will is most widespread. Document written, dated and signed by hand of testator (C. civ. art. 970), is thus inexpensive.
However, it may sometimes give rise to contestation (even annulment) when not drafted with help of specialized jurist (imprecise designation of beneficiaries, provision or simple wish, contradictory objects).
Why deposit holographic will with notary?
Strongly recommended, deposit of holographic will with notary allows above all to secure document avoiding it being lost, destroyed or concealed by ill-intentioned person. It also guarantees will will be found at time of death, thanks to its registration in central file of last wishes provisions (FCDDV), consulted after death.
FCDDV - Central File of Last Wishes Provisions
Le dépôt du testament auprès d'un notaire donne lieu à son inscription au FCDDV (Fichier Central des Dispositions de Dernières Volontés). Cette mention garantit que toute succession ouverte en France par un confrère permettra de retrouver et d'appliquer avec certitude vos dernières volontés.
Is it possible to draft a will as a couple?
In French law, will cannot be made in same deed by two or more persons. Thus, will drafted by couple or drafted by single person and signed by both (called joint will) is null and cannot be applied.
It is therefore advisable that each drafts his will distinctly.
What is international will?
Useful for foreigner living in France, for French living abroad or also for person owning assets in different countries, international will must, once drafted, be presented to notary in presence of two witnesses. It can be written in any language.
What part of my estate can I give by will?
In absence of child or spouse (deceased was not married), testamentary freedom is total.
However, it is not possible to totally disinherit one's children or failing child, surviving spouse as they are said reserved heirs.
Consequently, testator can only freely dispose of part called 'disposable portion'.
Disposable portion
This is fraction of succession of which deceased can dispose by donation or will in presence of reserved heirs. Its amount is:
- • one third if there are two children,
- • one quarter if there are three or more children,
- • three quarters.
Hereditary reserve
Reserve is fraction of succession which obligatorily belongs to children, or failing child, to surviving spouse. Amount is:
- • half: if deceased leaves one child,
- • two thirds: if there are two children,
- • three quarters: if there are three or more children,
- • One quarter to surviving spouse.
Reduction of legacy
If consented legacies exceed disposable portion, reserved heirs may request reduction of those legacies and receive compensation (in principle as sum of money) (C. civ. art. 924, al. 1).
Legatee retains his asset(s), in return must compensate reserved heirs.
If consented legacies exceed disposable portion, then compensation for reduction will be due to reserved heirs. In principle, payable in value (C. civ. art. 924, al. 1).
This reduction in value thus allows legatee to keep asset(s) bequeathed to him, by paying compensation.
Can a will be modified or revoked?
Testator is free to go back on his last wishes provisions at any time. Will is always revocable by simple will of one who drafted it.
Revocation of will can be express or tacit.
- — It is express when testator drafts new will explicitly annulling previous, or when he has established by notary deed clearly providing this revocation.
- — It is tacit when testator drafts new will whose provisions are incompatible with those of previous will or when will is destroyed or also when asset object of will has been donated or sold.
Wish to anticipate and protect your loved ones?
Our notarial office is at your disposal to organize drafting and registration of your provisions in total serenity.