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French Property News Q&A - Probate "En Tontine" Claim

Question

My husband has recently died and we own a property in France in joint names, en-tontine, we purchased in June 2007. How do I get the property transferred into my sole name? We do not have a French will, but the English will leaves everything to me. My son died recently in U.K. and the transfer of his joint property to his wife was easy, just a phone call and documents. Is it possible to do it like this in France, without solicitors' costs?

Answer

The effect of the tontine clause included in the purchase deed for a French property is that on the death of the first joint owner, the surviving joint owner is deemed to have been the sole legal owner of the property from the original date of purchase. To be blunt, it is as if the deceased had never been an owner of the property.

It follows on from this that as far as the French Land Registry is concerned, it is not compulsory for their records to be updated to reflect the death of the former joint owner and the surviving owner could sell the property without any prior formality having been dealt with.

However, very often, notaries in France will advise a surviving owner to request the drawing up of an "Attestation Immobiliere" which is a declaration which records the death of the former owner and confirms that the surviving owner is now the sole legal owner of the property.

The Declaration is then lodged at the Land Registry and their records will be updated.

The cost of the Declaration depends on the value of the property and a local estate agent can be asked to provide a current market value (un avis de valeur) which the notary will then use to calculate the fee payable.

Once the Land Registry records have been updated, all subsequent local tax demands (taxe d'habitation & taxe fonciere) and other official documentation relating to the property will then be issued in the sole name of the surviving owner.

Whilst the Attestation Immobiliere is optional, the lodging of an Inheritance Tax Declaration (une declaration de succession) is compulsory even if no inheritance tax is actually payable. There are a few exceptions to this rule, one of which is that if the deceased's estate is worth less than 50,000 Euros and you are the surviving spouse and you have not previously received any other asset(s) by way of gift from your deceased spouse, then you do not need to file a tax declaration.

One final point, if the deceased was non French resident, his heirs or the executors have 12 months from the date of death in which to submit the tax declaration to the French Tax Authority. For French residents, the deadline is 6 months from the date of death.

This Q&A first appeared in Issue 262 of French Property news - December 2012.

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