Succession: rules to know for a donation
Donation makes it possible to reward loved ones (family members or not) but also a labor, an association or a congregation one may support. Donation is a serious act because, except for exceptions, it is definitive.
What is a donation?
To give means passing on during one’s lifetime, an asset we may possess, to a third party . Therefore, it’s an important act through which the donator (the one giving) rids himself of one part of his inheritance (one or several assets ). The parties need to agree on what is going to be given and its value, by respecting the presence of forced heirs. For the donator to be perfectly informed about the consequences of his gesture, donation requires writing a notarized act (except for manual donations).
Carrying out a donation allows rewarding the donee (the one receiving the assets ).
But it’s also a way to:
- Anticipating one’s succession by helping one’s children, grandchildren and family during one’s lifetime (brother, sister, nephew, niece);
- Optimizing transmission for tax purposes, deductions are renewed every 15 years.
- Avoid potential difficulties related to sharing the succession,
- Organizing Family and Wealth Management: for example, a donation can be granted in return for an annuity. Therefore, this makes up a valuable supplement for retirement.
- to make significant tax savings, especially in the case of business transfer, farm operating or building
Under what form should my donation be written?
Requirement for an authentic act
The law requires to draft a notarial act to validate a donation . The donation isn’t valid without an authentic act. This formality allows protecting the parties but mainly the donor. The notary makes sure that the donor's consent is genuine. The notary ensures the efficiency of the donation and compliance with the asset rules. Last but not least, the authentic act allows the act to have a certain date, a probative value (until proof of forgery) and legal force.
- The manual donation is a donation carried out, hand to hand. This can only concern personal property (jewelry or an amount of money, for example). It should be noted: It is possible to give an informal amount of money to one of your children. Nevertheless defiant. A donation must comply with certain legal and tax rules and can trigger a family conflict if it is carried out without prior consideration. We therefore invite you to consult a notary before any manual donation.
- Customary present: This is a present. Its value must be modest in relation to the standard of living and the importance of the heritage of the person giving the gift . If these conditions are met, the gift is a customary present, which is not subject to donation rights.
Donation: what can we donate?
What kind of assets can we donate?
A donation can concern real estate (apartment, house ...) and/or furniture (furniture, jewelry, paintings ...). The property must, however, belong to the donor: it is not possible to donate an asset that the donor will acquire in the future.
Can we donate everything?
The law reserves for certain family members (so-called “forced heirs”) a part of the inheritance , which they cannot be deprived of.
Controlled freedom in the presence of forced heirs
Family members who can never be completely excluded from an inheritance are the descendants (children, grandchildren) and, in their absence, the spouse. They are entitled to a minimum share of the inheritance of the deceased .
- The descendants
These are forced heirs, regardless the nature of the descent (natural or legitimate children and adopted children). The share allocated to them is equal to: - Half of the goods in the presence of a child. - 2/3 of the property in the presence of two children. - 3/4 of the property in the presence of three or more children. The rest makes up the available quota, which can be allocated to a freely chosen legatee. It should be noted: this freely chosen legatee may be one of the children to whom the parent wants to leave more inheritance.
- The spouse
A spouse who is not divorced and not separated from the body is a forced heir only if there is no descendant. He is then entitled, to a quarter at least (1/4) of the inheritance.
Total freedom in the absence of a forced heir
The other members of the family are not forced heirs. Moreover, they can be excluded if the deceased person had decided to allocate all his assets to one or many other beneficiaries.
Donate to an heir: a simple advance of succession or an advantage?
A donation made to a reserved heir (children or failing that the spouse) can be carried out in advance from the estate share or beyond the estate share. A donation made to a non-forced heir or to a stranger during the succession, shall be offset on the available share (the reserved share would go to the forced heirs)
Donation in advance from the share of the estate
An advanced donation from an estate share consists, for a donor, in attributing to a forced heir, all or part of his share of inheritance in advance. Therefore, equality with other heirs is not violated. Unless otherwise specified by the donor, all donations are presumed to be carried out in advance from the estate.
Donation excluding estate share
This type of donation concerns everyone you wish to benefit. This is about freely possessing of what one has outside of the reserved share and what is known as the available quota. For example, the donor can favor one or some of his children compared to the others, provided that he respects the reserved share of each child.
This should be mentioned in the donation act, that it is not part of the estate.
It should be noted: a donation outside the estate share may exceed the available quota without being called into question during the succession, if the forced heirs have accepted this in advance. This is known as an anticipated waiver of the action in abatement.
Can one go back on a donation?
A donation is binding. With some exceptions, it is therefore not possible to go back on a donation, which is granted regularly.
However, a donation can be terminated in three cases, which are strictly governed by law (non-compliance of charges, ingratitude and arrival of a child).
Apart from these exhaustively listed cases of termination, a donation is a final act. Therefore, it is encouraged to seek the advice of a notary, before carrying out this binding act.