Multiple forms of gifts exist such as notarial, disguised, indirect and manual gifts.
Notarial donations:
Notarial donations are provided under article 931 of the French civil code.
This form of donation is mandatory for any donation of real estate assets, donations by contracts of marriage, donations to the remaining surviving spouse, joint donations, donations in the profit of two inheriting beneficiaries and donations with reservation of usufruct.
The donation must be drafted by a notary in an authentic document published in the notary’s records (“rédigé en minutes”). The notary must seek the consent of each party.
The act must necessarily be dated and signed by the parties and the notary subject to nullity leading to the retroactive destruction of the donation.
If it has already intervened, the beneficiary shall restitute the assets in the same conditions he received them.
Disguised donations:
Disguised donations take the form of a transfer for consideration (“acte à titre onéreux”).
It will be valid if it meets the form conditions necessary for the constitution of the acts of which it borrows the appearance.
The consent of the beneficiary is also required. The parties must be capable of consenting and accepting the donation. If the donation is made in the aim of avoiding an incapacity to receive, it will be sanctioned by nullity.
The beneficiary must be animated by a liberal intention. The donation can, for example, take the form of a sale whose price is derisory.
It belongs to the individual who claims the existence of disguised donation to bring proof of its disguise.
All disguised donations passed in fraud of the compulsory heirs (“héritiers réservataires”) are subject to reduction.
Indirect donations:
An indirect donation results from a neutral act that does not indicate if it is consented to against a fee or for free.
It requires an impoverishment of the beneficiary that is materialized through an actual and irrevocable divestiture.
The liberal intention of the beneficiary must also be demonstrated.
The indirect donation can be characterized by a waiver to a right or a third party stipulation (“stipulation pour autrui”) such as life insurance.
Manual donations:
A manual donation is a donation without particular formalities outside a notarial framework. It entails the transfer of an asset to the beneficiary.
Only movable assets and tangible assets can be subject to this donation.
This donation entails a liberal intention of the settlor. It necessitates the acceptance of the beneficiary that must be in capacity to receive it.
If the manual donation exceeds the disposable portion (“quotité disponible”), it will be subject to reduction. All heirs that do not declare a manual donation to the succession incur penalties of successoral conversion (“recel successoral”).
The inheritor that claims a report or reduction can prove the manual donation by any means.
Maître Frédéric Michel – Fairfield Law firm | Lawyer in Cannes
