property inheritance (Clause Tontine)

[carolhazell]

We are confused by French inheritance laws (like
everybody else!!). We are buying a property as
a maison secondaire with a clause tontine. If
one of us dies does this delay does this defer
the childrens' claims on the property until the
second of us has died? Some books suggest that
a French holographic will is necessary as well.
does anybody know the definitive answer?!

[PG]

Hi there

I have also asked quite a few questions regarding the tontine clause, and seem to get alot of variable answers. The majority of the forum are usually quite right by advising you to get proper advice regarding such matters, but even when you do it's still a minefield, as i have found out myself.

I am however the shoe on the other foot, in the sense that my late father left my sister and i his property in France, but his second wife is contesting it by saying it was bought with the clause tontine. It's a very messy situation, and is costing all involved a fortune in legal fees, so please check and double check that the advise you are getting is valid.

I hope this helps in some way..

Paul

[Kathryn]

Hi. We've been doing a lot of research on the inheritance aspect of buying a property in France, and have ourselves decided on a Clause Tontine to be in the deeds. This effectively means that, when one of you dies, the survivor is deemed to have owned the property from the beginning. You, as the survivor, would effectively retain control of the property. This does not mean that any children would be disinherited, it would just delay them from inheriting until the remaining owner died. A Clause Tontine would effect the amount of tax paid on the death of the first of you, and it would be VERY WISE to get full legal advice. There is also nothing to stop any disgruntled relative challenging ownership - hey, this happens in England too - I've done work on Wills for the last 25 years! It's amazing what can crawl out of the woodwork when money is involved. It is also VERY WISE to have French Wills - any French Solicitor can help - and to make sure that they do not contradict or invalidate any Wills you have in England.

Good luck.

[Elaine]

We have been advise by our Notaire to re-consider buying the property Clause Tontine as it means that should anything happen to either one of us there would be tax to pay to the French Government and that away around this is to sign a 'Changement Regime Matrimonial.

He also advised that this would only be an option to couples we don't have children from previous marriages (which fortunately for us we don't.

Has anyone else heard of or had experience of this type of agreement?

[Crazy Ann]

Carol

Dont know if any of the posts has answered your original question but . . .

We bought with a tontine clause because IN OUR CASE we wanted the survivor to have the full freedom to stay, unhindered by claims, or sell and move elsewhere in France or back to UK or anywhere else in the world if they so chose.

The tontine clause specifies that on the first death the survivor is deemed to have owned the property solely since purchase as if the other person had not existed. We made the choice eyes-wide-open.

The inheritance taxes are a different subject and should be dealt with separately.

You should be wary of the language used in wills. The word "property" has several meanings - house, chattels, money etc etc.

If in doubt seek the advice of a notaire.

Good luck

CA

[Colin Gill]

Hi, everybody,

I used to think I was confused now Im not so sure. But, seriously, this series of responses has peeled away some of the layers of confusion for me.

Question: How do you go about implementing Tontine after the death of a spouse?

I am actually at that point in buying a house where I have to reach a decision on Tontine or an alternative pretty soon. I recognise the need to get good legal advice, but my experience tells me that it is a good idea to get things as clear as possible in your own head first.

For us, the purpose of choosing Tontine is not to disinherit the kids, but to give the surviving spouse the freedom to do what he or she wants to do with the house and, above all, have unhindered occupancy. After all, in our case at least, they will share everything that is left when we both die. Assuming for the moment that a Tontine clause is right for run-of-the-mill people like us (married for decades, no previous marriages: two adult children, none outside the marriage) with a second home in France, but still domiciled in the UK for tax, what actually happens when one spouse dies?

- Does the survivor simply trot along to a French notaire to have the house title changed from the joint names to the name of the survivor and to sort out the inheritance tax?

- Would a French will make this process easier?

- Would a French will prepared in English be better or worse, bearing in mind it then has to go through an expensive process of translation and verification before it will be accepted in France?

I would be very grateful if someone could post a copy of the Tontine clause. It would be nice to actually see this brute which has sired so many queries.

[Elaine]

Hi Carol

Like you we were advised to purchase our property En Tontine but when we went to see the Notaire to sign the Comp de Vente he advised us to consider Changement Regime Matrimonial (apparently very recent changes in EU law makes this worthwhile). This basically offers you the same protection as the En Tontine but without the taxation issue. I have roughly translated the document and it looks okay!

If you havn't got children from previous marriages then it might be worth you asking about the above. If you have - don't bother because the En Tontine will definately be better for you.

Good Luck!

Elaine

[Susan519]

Although I've read through all the answers to this I'm still confused - sorry .
If we buy our French house with a clause Tontine how does this affect the inheritance tax paid on the death of the first one by the survivor? Although not married now we will be when we buy the house. If as said the clause tontine assumes the survivor to have owned the house since the beginning how does inheritance tax come into it ? We are not bothered about who inherits the property after we have both gone( and there are children involved but they can sort their own taxes out .) I would just like to know how it affects US .
Thanks anybody
Susan

[Kathryn]

We have just completed our purchase of a property with a clause tontine. There was no particular phrase involved, the Notaire simply indicated that it would be registered as such. This clause, as already mentioned, merely arranges for the survivor of the two of you to carry on as before, it defers any involvement by children until the survivor of you dies. The current exemption limit under a clause tontine is, I believe, 50,000FF - after that you are taxed at a sliding scale depending on the value of the property.

On the death of one of you, the survivor registers the death and then hops along to the Notaire to have the deeds amended appropriately. It all sounded horribly easy when the Notaire explained it - I hope it will be.

[Suee]

Hello Carolhazell,
What did you make of all this information? In particular - have you looked at 'Changement Regime Matrimonial' as suggested by Elaine - on the face of it, this seems to match both of our situations pretty well. Good luck to you & wish us well in this minefield!

[Richardbk]

Looking through this I was a little surprised that it has not been updated as a result of changes in French law on Jan 1 2002, which came into effect on 1 July 2002.

Under new laws it is now not possible for children to evict the surviving spouse

If there are NO children from previous marriages of the deceased spouse , the surviving spouse now choose either to take 1/4 of the succession OR 100% of the usefruct(ability to use, rent etc)
. The children will receive 3/4 of the succession OR 100% of the bare ownership.

The surviving spouse is able to sell the property, buy another etc, but that succession part of the children is always carried forward. E.g part of the new house may be deemed to be thier inheritance or it may be put into a special bank account.

If there are children from previous marriages of the deceased spouse, only the first option (surviving spouse takes 1/4 and children receive 3/4) is the only option.

With respect to changing the marriage regime to community, this can be done within the first 10 years of coming to France quite easily with a notaire(after that it requires a judge), but there is now some doubts over whether a notaire can do this(there is no case law) if children <18 are involved as this is a right which is not granted to French couples.

for some additional details see my posting in legal->minimum income for carte

Due to the above changes, the Tontine clause is now being used less and less in France. With the Tontine one should note that it is generally not tax efficient and will also give problems should you separate.


With regards wills, You really should have one of these if you own property in France. If not it likely that the courts (UK High Court) would need to get involved in the probate which can be very complicated and expensive). All French wills are written by Hand. They are NOT witnessed and can be written in English or in French (or any other language). They can be written on anything from a napkin to a brick wall. If you do it with a notaire they will register it for you on the official wills register in France, and will ensure that you write it in a way which can be interpreted easily.

The difference between UK and French law in the areas of inheritance should not be under-estimated and as such it is essential that people seek proper advice.

regs

Richard
BTW. No, I am not a lawyer/notaire or in any way related to the legal service. Just been there and done it and been re-doing it again over the last couple of months.