How to Settle an Estate Litigation
The management of an estate can be entrusted to a third party, whether a notary or an estate agent: this makes the process easier and avoids disputes.
It is possible to appoint a person to manage the estate upon one’s death during one’s lifetime.
The administration of the estate can be entrusted to a notary.
The death of a close relative entails numerous formalities:
– steps to be taken after the death;
– declaration of inheritance;
– certificate of inheritance;
– deed of inheritance.
Estate management: the estate agent
When a person dies, several post-death procedures must be carried out, so it may happen that:
the settlement of the estate may be put on hold for a while;
the succession is complicated due to the complexity of the deceased’s assets
the succession may be a source of disagreement between the heirs.
Under these circumstances, it is advisable to entrust the management of the estate to a third party: a mandatary.
Several types of agents for the management of the estate
There are different cases:
Posthumous agent
It is possible to appoint a person to manage the estate during your lifetime.
The agent may be an heir or a third party to the estate.
If the posthumous representative is paid, his or her remuneration is deductible from the estate for the payment of inheritance tax.
The posthumous mandate must be:
– an authentic act: it is drawn up – during the lifetime – by a notary,
– justified by a serious and legitimate interest: the existence of minor or incapacitated heirs, significant assets, etc.,
– accepted by the agent before the death of the principal.
The posthumous mandate is valid for 2 to 5 years unless extended by the judge.
Conventional agent
An heir or a third party.
Appointed by mutual agreement between the heirs.
Legal representative
Appointed by the judge, at the request of any interested party, in the event of inertia, mismanagement or discord in the estate.
Estate management: the mission of the estate agent
The mission of the estate agent is to preserve and safeguard the assets of the deceased’s estate:
he/she manages the estate;
he/she carries out any conservatory act necessary for the survival of an asset included in the deceased’s estate.
In the presence of a will, the testator may appoint a testamentary executor in charge of the execution of the will: his action is coordinated with that of the mandatary and the notary.
Good to know: a shared donation enables the assets to be distributed during the deceased’s lifetime; this avoids any possible disagreements when the estate is settled.
Managing the estate: calling a professional
The heirs can – and sometimes must – call on estate litigation professionals to manage the estate.
The assistance of a notary can be helpful in the event of a large estate, incapacity of the heirs or disagreement between them.
The notary’s tasks are as follows:
– to draw up an inventory of the deceased’s assets,
– list the heirs and determine their rights in the estate
– proceed with the division of the estate in favour of the heirs;
– to deal with the execution of the will, the real estate certificates and the declaration of inheritance, if necessary.
The heirs provide the notary with all relevant documents: family record book, bank statements, etc.
The civil law notary verifies the existence of a will by referring to the central file of last wills and testaments.
Good to know: the only disadvantage of going through a notary is the high cost.
Management of the estate: the succession mandate as a solution to the blockage
When one of the deceased’s heirs – or even a creditor of the estate – is faced with inertia or deadlock due to a conflict between the heirs, it is possible to ask a judge to appoint a legal representative to manage the estate assets.
Nature of the judicial mandate of succession
The legal representative of the succession is the person who the judge appoints to:
– manage the inheritance assets over a given period
– resolve conflicts and blockages in the estate sharing or the settlement of undivided interests.
The competent court is the judicial court of the place where the succession is opened (last domicile of the deceased). The president of this court appoints the successor.
Procedure
Failure to act, disagreement between the heirs, the complexity of the case and the issues at stake are all reasons identified in practice that may lead to the appointment of a judicial representative.
This may be requested by an heir who has accepted the estate, a creditor pursuing the recovery of his registered claim, any person with interest in the case, and even the public prosecutor.
After analysing the file, the president of the judicial court to which the request is referred
appoints the judicial representative of the succession to administer the estate
sets both the duration of his mission and his remuneration.
This representative has, in particular, judicial competence to settle the estate debts and collect the income. He or she may only perform conservatory acts (management of the deceased’s assets), acts to avoid increasing the estate’s debts, or administrative operations necessary for the continuation of specific activities (continuation of a business or renewal of leases, for example). Generally speaking, the judicial succession agent receives from the judge all powers to carry out the acts required in the interest of the succession.