Following the death of a loved one, his heirs must settle his estate. Certain situations such as the presence of real estate, a donation, a will or the level of the amount of the estate require you to go through the services of a notary. But, contrary to popular belief, some estates do not require going through a notary.
During a succession, in the event that the deceased held real estate, calling on a notary is mandatory. The notary must indeed draw up a certificate of real estate ownership. The latter designates a legal act which records the transmission of real estate belonging to the deceased to his heirs.
This deed can only be drawn up by a notary. The latter sends this certificate of real estate ownership to the Land Registration Service, which was previously called the mortgage office, for publication, of the place where the real estate concerned is located. Following this publication, the certificate of real estate ownership serves as the title deed for the heirs.
In the same way, during a succession, the use of a notary is mandatory from the moment its amount is equal to or greater than 5,000 euros. The heirs must, in fact, ask a notary to draw up an act called "notarial act" which proves that they are indeed the heirs, which specifies their degree of kinship with the deceased and the share of inheritance which is theirs.
With this deed of notoriety, which must be drawn up by a notary, the heirs have legal proof of their status as legatee, in particular to address third parties. For example, thanks to this notarial deed, the heirs can release the available sums of more than 5,000 euros from the bank account of the deceased.
In the event of an inheritance, it is also necessary to go through a notary if the deceased has drawn up a will, a document which must always be written, whether the latter has been deposited with a notary (we then speak of an "authentic" will). ") or that it was written alone by the deceased without calling on a notary (this is a so-called "holographic" will).
A will allows you to organize the distribution of your property during your lifetime and to express your last wishes. If it has been filed with a notary, the latter registers it in the Central File of Last Wills Dispositions (FCDDV) which allows following a death to know if a will has been drawn up by the deceased and thus facilitate the settlement of the estate.
Only a notary is authorized to enforce the wishes expressed in a will.
The use of a notary is mandatory when there is a donation between spouses, also called donation to the last living.
This form of donation allows during his lifetime to provide a larger share of inheritance for his husband or wife. The donation between spouses requires the use of a notary who, unless you object, registers your donation between spouses in the Central file of the dispositions of last wills (FCDDV) to formalize it.
On the death of one of the spouses concerned, the settlement of the estate must go through the use of a notary whose role is to ensure that the wishes of the deceased spouse are respected.
Resorting to a notary during a succession is not necessary, even if this approach is recommended, in the case of a succession whose amount does not reach 5,000 euros, if the deceased did not hold real estate and if he had not made a donation during his lifetime. In these cases, in fact, a simple certificate, called certificate of inheritance or certificate of heir, signed by all the heirs is sufficient to prove their status as heirs without having to go through a notarial deed. Before a 2015 law, this certificate was issued by a civil registrar upon presentation of the death certificate, birth certificate and family record book.
This certificate must mention that there is no will, other heirs of the deceased, marriage contract, lawsuit, ongoing dispute concerning the status of heir or the composition of the estate, and that the estate does not include any real estate.
This document allows the heirs, for example, to withdraw the money available in the bank account of the deceased, up to a limit of 5,000 euros, or to close the account if the sums available are less than this amount. It is also what will be used by the heirs to declare a succession to the tax services, necessarily within 6 months after the death.
Without having to go through a notary to settle an estate, precautions must nevertheless be taken by the heirs. They must ensure that no other heir exists, for example a hitherto unknown child. In the same way, the search for possible creditors (real estate or consumer loans in particular subscribed by the deceased) is essential. In this case, if the sums due are greater than the amount of the estate, the heirs may, if they wish, renounce their share of the inheritance.
