As part of the process of dealing with a succession in France it is the legal responsibility of a notaire to produce a déclaration acte notarié establishing the devolution of the estate based on the deceased person’s Will and the legal rights of any heirs or legatees.
Sometimes, for example, in successions involving family estrangement, stepfamilies, or family members based outside of France, the notaire may be unable to identify or trace all the potential heirs.
They may, therefore, engage the services of a genealogist (généalogiste successoral), who will attempt to use public records and archives to reconstruct the deceased’s family tree and track down any ‘missing’ heirs.
Genealogists cannot claim remuneration for their services unless they have been instructed to do so by someone with a legitimate and direct interest in the succession (usually the notaire).
However, the contract should only be entered into once the notaire has made a reasonable attempt to find the necessary information through their own research.
The fees of the genealogist are not regulated and the level of the fee payable depends upon the nature of the service rendered.
Where a notaire is in contact with the heirs, but wishes to be certain that there are no other beneficiaries, a genealogist may be hired to provide that confirmation. In this case, their payment is a flat fee of between €500 and €1500. The fee is deducted from the inheritance.
However, things get murkier when the genealogist is asked to track down a previously untraceable or unknown heir, when the fees can be very substantial indeed.
If they manage to do so, full details of the succession or the value of the inheritance will not be disclosed to them. The heirs will then be asked to sign a disclosure contract (contrat de révélation) which provides details of the inheritance in return for a payment of commission.
The fee is usually expressed as a percentage of the net assets received by the heir and can range from 10% to 50%; the greater the total amount of the inheritance and the closer the family link between the deceased and the heir, the lower this percentage is likely to be and vice versa.
As a result, the sums payable in such cases can be very significant, and in response to the lack of regulation over the level of the commission payable there have in recent years been, as yet, unsuccessful attempts in the French parliament to enshrine it in law.
Heirs are often unaware that they can negotiate the price before signing the disclosure contract, and that, even once it has been signed, there is the possibility of renegotiation if the cut taken by the genealogist seems excessive compared to the work undertaken.
A contrat de révélation can also be declared void if the heir provides proof that they already knew about the inheritance before being contacted by the genealogist.
There are certain legal requirements for the disclosure contract in line with the consumer code, notably that it must include a withdrawal period and that it should clearly state whether search fees will be charged alongside the percentage cut of the net assets.
Verification that the genealogist has received a formal instruction from the notaire, to confirm it is legitimate, should always be carried out. It is also possible to request a clear breakdown of any the fees charged by the genealogist and the corresponding expenses.
In some cases, heirs may also choose to grant the genealogist power of attorney (mandat de représentation), which will allow the genealogist to act on their behalf in all the ensuing administrative processes relating to claiming their share in the estate. It is not compulsory to do so, and may only be useful where you do not wish to simply rely on the notaire.
Many critics argue that notaires are becoming over-reliant on genealogists, even in relatively simple successions where they should have been able to find all the information themselves.
Instructing a genealogist is likely to result in a significant delay in finalising the succession, which can mean financial hardship for those who are involved.
International successions often represent a particular challenge to notaires and there are many reports of notaires being particularly hasty to engage genealogists in such cases.
Where there are only direct descendants (partner, children) who are the heirs it is arguable whether such a step is warranted. Cases in the courts have determined that the notaire cannot simply decide to resort to a genealogist without a clear basis for doing so.
Accordingly, heirs should demand that the notaire makes clear in writing why they consider engagement of a genealogist to be necessary. The notaire has an obligation in the first instance to undertake their own searches, so you should request details of the enquiries they have made. If these turn out to be of little of no substance, then there can be little justification for engaging a genealogist.
Usually, it is possible to prove that there is no reasonable doubt about other heirs through the use of a sworn affidavit made by known heirs. Only where there are no immediate heirs would the appointment of a genealogist be imperative.
If the notaire is insisting on engaging a genealogist in a seemingly simple succession, it may be worth looking to see if you can find another one who would be willing to proceed on a different basis.
More generally, as international successions are frequently plagued by delays, John Kitching, a legal specialist in French inheritance law, comments that: "Perhaps the most important that can be done to reduce the risk of such delays and the likelihood of need a genealogist is to make a Will, and in that Will to declare all of their children or that they have no children. On death, as the UK does not have a 'Livret de Famille', we also ask the closest heirs to declare who the children or closest relatives are, or the absence of them."
We receive a regular flow of mails from readers about problems encountered with their notaire during a succession so careful consideration needs to be given to the selection of your notaire, although we recognise that is easier said than done!
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