he opening of the succession is usually triggered by the death, although there are other causes at this first stage, often crucial. It marks the implementation of estate devolution, i.e. the establishment of the set of rules that define the order of the heirs to the estate. Lawyers Pistachio sheds light on this key step and its challenges.
The opening of the succession causes: the death, absence and disappearance.
Two other causes of opening of the succession exist beyond death, which is the main cause of opening of the succession. It is of absence and disappearance.
According to article 88 of the civil Code, the disappearance is a cause of opening of the succession under certain conditions. A judicial declaration of death must be obtained. It is issued by the judge when a person disappeared in circumstances likely to put his life in danger and that his body could not be found. The Declaration of death will then take place death certificate.
The absence, on the other hand, is provided for by article 128 of the civil Code. This is the situation regarding a missing person nobody know where she is. It is not question, in this case, of circumstances putting it at risk. A declaration of absence judgment may be delivered at the end of a period of 10 years after the judgement which found the presumption of absence.
These judgments final will lead the same consequences that the death, including they will mark the dissolution of the marriage and the opening of the succession.
However, it should be noted that in these last two situations, the devolution of the estate is not final. As soon as the existence of the absent or missing person is proved, the devolution of the estate is retroactively cancelled.
The date of opening of the succession
The succession is opened at death which is specified by the Act of death, or on the date of the Declaration of absence or disappearance.
This date is important since it defines the law applicable to the succession, which will be the one in force at the time of the opening. Moreover, this date marks the beginning of the in division among various heirs, is its exist.
The date of opening of the succession also allows to know the heirs who will succeed to the deceased. The date and the time of death are important information, especially in the case of several almost simultaneous death « or cormorants”.
Article 725-1 of the civil Code, introduced by the law of December 3, 2001, has that the order of death is established by all means when two people died in the same event. ‘ If this order cannot be determined, the estate of each devolves while the other is called . ” ». Estates are then resolved independently of the other. However, article 725-1 paragraph 3 implements a derogation whereby in the case where ” one of the code cedes leave descendants, these can represent their author in the succession of each other when the representation is admitted . This solution allows, by the representation, in principle ousted heir to represent a cormorant to compete in the succession of the other.
The place of opening of the succession
The place of opening of the succession is, according to section 720 of the civil Code, the place of the last domicile of the deceased. Place of the opening determines the territoriality competent court for any disputes or demands of heirs or creditors. However, it should be recalled the existence of the European regulation which allows to determine the applicable law for the estates open from 17 August 2015. This can become a source of questions, and even litigation as part of an international succession .
The quality of heir: absence of unworthiness
A number of qualifications are required in order to inherit. It must, in the first place that the heir exists, i.e., that there is at the moment of the opening of the succession or is already designed and be born viable.
Furthermore, it should be that the heir is not hit within dignity. It is a forfeiture of estate law who is a private (Cass. Civ. 1st 18 December 1984).
The 2001 law reformed cases of unworthiness in strengthening them.
The two worst cases of unworthiness operate full rights, the intervention of the judge to pronounce unworthiness is not necessary. Simply that the heir has been condemned by a court for the acts attributed to him. There are also cases of optional unworthiness (the judge must declare the indignity). These cases are five.