Yes that horrible word again! Before anyone tells me to go and see a notaire for accurate advice I must say we have done so on three occasions now and still get conflicting answers.
Perhaps someone has a similar problem and can enlighten me as I'm damned if I can figure it out.
I have two children by a previous marriage, have been married to my second husband for 30 odd years, he has no children but has a sister and two nieces. When we bought our first house in France we took advice from the acting notaire who assured us that by buying the house in my husband's name only, he could gift the property and everything else to me without his relatives or mine becoming reciprocants. We paid euros 300 to register our intentions and this document is now held by that notaire.
Recently a friend lost her husband, she has 3 children and has never been married to anyone else, and had the tontine clause in the initial contract of sale. At the funeral the notaire was present and asked the children (adults) to sign papers giving the mother sold rights to the property. Now she wants to sell and have the bank account etc. in her name she has had to pay euros 3000 to achieve this aim only to be now told you can't disinherit children and they will each have to complete and sign another set of forms in order for her to sell. Why I'm writing all this is because she has now told me, there is no way according to her notaire, next of kin can be left out of inheriting. So where does that leave me, if I am the surviving spouse, and we are about to buy another house. If MOH survives me well and good but at 76 we feel a little concerned.
Apparently even if the new law is passed giving non french citizens the right to leave whatever to whomever they choose still does not include the property. I am totally confused. HELP PLEASE!
The tontine clause can be contested by the dissatisfied heirs :
- if it can be shown that the property was acquired through finance of only one of the parties to the clause, i.e. if there was only one bread-winner, say, who effectively paid for the property with his/her income ;
- if it can be shown that the clause was made with the deliberate intention to disinherit the heirs from their rightful share - this is particularly important where there are children from a first marriage.
See here
French law does not vary by department, and what Harriet says is correct about a properly drafted tontine clause.
Tontine clauses are by no means good for everyone as it is random which partner survives and therefore (if there are two families) who actually ends up with inheritance rights. They only affect the house or land held "en tontine" and have no effect on rights over other assets.
It is isn't it Harriet. Does make you wonder about using Notaires. Probably better to get your wills done by an Avocat in the first place, as others here have urged.
It is indeed very strange Harriet especially as my friend has now gone to the uk to get the kids to sign over to her. Impossible for us to do all our family are in Australia! Is it that the interpretation of the law differs from department to department? Should be universal but after all the differing experiences I'm beginning to wonder.
Thank you, Norah. Our avocat is adamant that the tontine clause gives the surviving the spouse the real property without the necessity of any children or stepchildren sharing in the proceeds and that the property may be sold whenever the surviving spouse wishes to sell it. We have checked this out and likewise know people who have unfortunately lost a spouse, and the process has worked the way that we were told. All very strange.
Harriet, that is exactly what happened to my Sister-in-law. If she sells the house the children HAVE to have their share despite joint wills and a tontine clause. In the case of one man I heard about, his daughter was going to go in with him to buy another house after the death of her mother as she wanted her dad closer to a town. She and her husband were even considering moving over. But mad as it seems the notaire insisted the money go into her bank account, something for tax purposes she did not want but it happened and then she had to transfer it back out to France together with the extra for the more expensive house!!
Oh dear Rachel, I wondered why their children were giving them some odd looks lately!!!!!!!!!!!!!!!!!
Actually, some notaires are more into redtape than others. Recently I was told by one notaire that my husband would have to sign specific documents in person for a purchase I am making alone, I kicked at this for several reasons (he doesn't want to bother, we would need to pay for an interpreter, it messes up his travelling plans...) and another solution was found which involved me emailing, receiving documents as attachments and forwarding them. Much cheaper and less strenuous!!
In the case you state above, as the notaire asked the children to sign over at their father's funeral, they could have taken him/her to court later saying that they weren't in their right minds that day....
Hi Harriet
your post is exactly what started me off on this thread from the beginning. My friend who lives in Finistere lost her husband at the beginning of this year and thought because they had included the tontine clause it would work out the way you have stated. At the funeral (if you please) the notaire asked the three adult children to sign over their interest in the house. This they did willingly. Now my friend wants to sell she has had to pay euros 3000 for another lot of papers to be drawn up as apparently the the previous ones only gave her everything (i.e. money in th bank) except the house! She has just flown to the uk with the paperwork ifor the children to sign over the house to her when she hopes she will then be able to sell unincumbered.
I just don't get it! It seems that each notaire has/her own version of what is law and what is not. How are we as mere mortals supposed to work it out. Napoleon has got a lot to answer for!!!
We thought we couldn't afford to go back to Australia but am beginning to wonder.
Doreen, you can donate your house to your nephews, it's quite expensive (which is crazy....), but cheaper than the inheritance tax.
Doreen, have you checked how much a donation would cost?
Spouses are first in line for inheritance IF there are no children from a previous marriage. Anyone who isn't a spouse or a child pays high taxes. So splitting 50/50 with your husband's sister would mean 50% for you (minus a fee, depending how much your share is worth) and not much for her as she would have to pay a much larger tax. Additionally, I'm not sure if he can include her in his will for 50%, you'd need to check, I know that if you have children you can only dispose of 25% of your inheritance, the rest MUST go to them.
If you get the house, YOUR children get it after you, nieces and nephews could have a maximum of 25% if you specify it in your will (and they'll be taxed for it....)
A notaire is the best person to go to as they deal with inheritance, a lawyer won't help much unless you have a case to fight in court, on the other hand, lawyers have been known to charge huge fees and generate useless court cases.... If your property is in France, you have no reason to go to an international lawyer.
From what my late wife told me some of them still have Francs stashed under the bed and in other weird hiding places even thou the Bank of France will now no longer accept them.
Maybe form a company off shore to own it, or form an SCI (Societe Civile Immobiliere) rather than just in the ownership of a person; best done before actually buying it.
If you are a French resident, French law will kick in when you die, but depending on how you are leaving your estate, your will may not be acceptable at present under French law. You can do wills now anticipating the 2015 changes, but you will need to revise the will when the changes [to leave your property to whom you wish rather than your children] become effective next year.
When we came to France nearly 12 years ago, we went to the avocat for the purpose of doing wills as we both have children from a prior marriage. We were told that we could not make out a French will, leaving everything to each other, if we have children. The children must be provided for if the will is to be legal. He suggested the tontine clause for real estate, not the communauté universelle as step-children/children still have an interest and you may have the right to live in the property for life and you wouldn't have to pay inheritance taxes on it when one spouse died, but you couldn't sell it because it still belonged to the children. I have posted before that we opted for the tontine and have checked with our avocat, as of yesterday, who told us that our tontine still accomplishes what we wanted. When one of us dies, title passes to the other who is free to sell the property or do as he/she pleases without any agreement from children or step-children. The communaute universelle would not have given us that option. Today, there are no inheritance taxes on the principal residence between spouses. We will certainly have our wills done next year once the air has cleared and the proper way of accomplishing our wishes is more definite.
Many people take out life assurance policies to pay such taxes. Here in our central Brittany village many quite large houses can be found at about the £100,000 level. The old stories about French people keeping gold under their beds most assuredly have some basis in fact! If you just rent and then have gold under the bed you are going to do pretty well in tax terms.
For a married couple it can effectively double to £650,000 until the death of the surviving partner. Thereafter it's taxed at 40% but if property is concerned tax can be paid over a longer period than if it were say cash.
As I responded earlier I own 50% of the house and have a life long interest in the other 50%, until I die, in the other 50%. Still can´t believe the number of people, I hear about, who say that they haven´t written their wills under French Law! I know of several who didn´t and French Law has automatically kicked in and they are most certainly now regretting it.