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GREAT HERITAGE! But how to get at it?


Retrieving assets in cross-border successions

Private Client Commission Workshop Questionnaire

National Report for France

Agnès PROTON
Avocat au Barreau de Grasse
3 rue de Bône
F-06400 Cannes
aproton@ap-avocats.fr

With the contribution of :

Marie Dominique FLOUZAT-AUBA


Avocat au Barreau de Paris
286 Bd Saint Germain
F-75007 Paris
flouzat-auba@Club-Internet.fr
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TO BE REMINDED :

1. SCOPE OF THE WORKSHOP

The Workshop will focus on the retrieval of assets in cross-border successions.


Due to the fact that the workshop runs only for 90 minutes, we will focus on movable assets
(cash, shares, funds, gold, jewelry, art works, etc.) we will not discuss real estate issues.

2. DEADLINES
30.10.2009 List of national reporters shall be finalized and confirmed
08.12.2009 Finalized questionnaires and Transfer of Copyright forms (“ToC”)
shall be sent to the national reporters.
22.01.2009 National reports and ToC shall be handed in to the general reporter.
01.02.2010 Final title and abstract of session sent to Work Coordinator
26.02.2010 General report and ToC shall be handed in to the work coordinators.
15.03.2010 External speaker confirmed
24-28 Augst 2010 The workshop will be held at the Charleston 2010 AIJA Congress
As you see the time frame is quite short. Please keep in mind that the General reporter has to
read about 15 National reports and write his General Report in less than a month. Therefore
it is of the upmost importance that the different deadlines are held.

3. HOW TO PROCEED
If you do not now where to start, how to proceed or have questions, feel free to call me.
a. Start to read the questionnaire soon enough
b. Look for the needed material as to write your national report (or have a trainee do it)
c. Write you national report in English
d. Send your national report to the general reporter before the deadline
The national report has to be written according to the “Format-of-Reports 2010.doc”. The
Format will guide you trough the expected layout. If you did not receive the Format or lost it
please ask me for a copy.
When saving your work, please name the document using the following convention
“WS_PCC_(country).doc”. For example: WS_PCC_France.doc

4. CASE STUDY
A fellow AIJA colleague calls you and asks for you advice :
The heirs of a deceased party asked your colleague to retrieve the assets of a succession
which are partly held in your country. The deceased party had his last domicile in the
country of your colleague. Your colleague needs an answer to the following questionnaire.
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5. QUESTIONNAIRE

Please answer the following questions, beeing as down to earth as possible. If a question is
not an issue in your country please be kind enough to write why it is not. If you feel that
important issues were not adressed by the questionnaire please add them under the question:
“Is there anything else which needs to be considered?”

5.1 How does one find the assets in your country or how does he know about it?

9 In France there are neither central nor local registries for tangible movable
assets such as furniture, jewellery, art works... Without any hints regarding their
existence, heirs would hardly know of, or find, those assets. There remains the
possibility of leading private investigations1, subject to a rebuttable presumption
as to tangible property stating that “en matière de meubles possession vaut titre”2.
Heirs who would want to retrieve such property out of unwilling third parties’
hands will have to prove that those items belonged to the decedent and that they
are entitled to inherit them.

9 As to cash, funds, portfolios or movables assets held in banking safes/vaults


there is a centralised national Register named “Fichier des comptes bancaires”
a.k.a. “FICOBA” 3 which may release the following information as to decedent’s
accounts existing on the French territory:
- name and location of the bank(s)
- account(s) nature, number, type and features
- account(s) opening or closing operations
- identities of the account(s) owner(s)
However, no information will be provided regarding banking transactions operated
on such account(s), as well as regarding the account balance.
Access to this Fichier is a personal right belonging to the account’s owner. Access is
also granted under certain circumstances to specific “authorised third parties” -
including Police Officers and Huissiers de Justice (Bailiffs) – expressly and strictly
determined by law. 4

1
For instance heirs may hire a « Huissier de Justice », or a Private Detective.
2
See article 2276 paragraph 1 of the French Civil Code.
3
The inquiry must be sent to the following address: Centre de services informatiques – FICOBA
ADMINISTRATIF – 22 avenue JF Kennedy F-77796 NEMOURS.
4
See article 4 of the « Arrêté du 14 juin 1982 relatif à l’extension d’un système automatisé de gestion du
fichier des comptes bancaires » available at :
http://www.legifrance.gouv.fr/affichTexteArticle.do;jsessionid=0B22DA57CC1E5B2D20383586A81DA75
F.tpdjo13v_3?idArticle=LEGIARTI000020413599&cidTexte=LEGITEXT000006069767&dateTexte=2010
0130
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Unfortunately, legal professionals such as Lawyers or civil law Notaries are not
listed as such5. They will need to get a judiciary authorisation first in order to obtain
any information from FICOBA.

9 Regarding life insurances, since May 1st 20066, any individual or legal entity (or
their representatives) wanting to know whether they benefit from a life insurance
subscribed by a decedent may address their inquiries to a centralised national
organism: A.G.I.R.A. (Association pour la Gestion des Informations sur le
Risque en Assurance). 7 This is in line with some of our Insurance Code recently
amended provisions; see Article L 132-8 last paragraph:
« Lorsque l'assureur est informé du décès de l'assuré, l'assureur est tenu de
rechercher le bénéficiaire, et, si cette recherche aboutit, de l'aviser de la
stipulation effectuée à son profit ». – providing that the Insurer who has been
informed of the subscriber’s death must in turn inform the beneficiaries.

9 Information relating to companies and shares may be gathered trough the


Registre du Commerce et des Société (RCS), which is a Public Registry that may
be accessed on line at www.infogreffe.fr (this is not a free public service though,
the information and corresponding documents are billed to the inquirer).

5.2 Which law is applicable to the retrieving procedure for movable assets?

Retrieving assets will imply to get at the “keeper”, hypothetically domiciled in


France.
French Jurisdiction will therefore be competent, according to the general principle
that defendants must be sued in front of the Jurisdictions where they have their
domicile/residence (individuals), seat or branch office (legal entities) 8.
But then – and logically – as to the merits of the case, the law ruling the succession
will be applicable.9

5
Notaries may however get financial information from the “Banque de France” Services Succession 75419
PARIS Cedex 9.
6
As a result of the Loi DDAC (= portant Diverses Dispositions d’Adaptation au droit Communautaire dans
le secteur de l'assurance) n° 2005-1564 enacted December 15th 2005.
7
To be sent to 1 rue Jules-Lefèbvre 75431 PARIS Cedex 9.
8
See article 42 & 43 of the Civil Procedure Code.
9
E.g.: in order to verify claimants’ quality and rights.
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5.3 What kind of documents are needed to legitimize yourself in case of inquiries
and to get information from a third party? Is it different if the third party is a
bank?

Organisms or administrations holding decedents’ assets - or information pertaining to


those assets – such as Banks, Insurance companies, or Tax authorities, will often
“hide” behind confidentiality duties/obligations to restrain themselves from
answering heirs’ inquiries (or their legal representatives’ inquiries for that purpose).

As to assets located in France, no matter who the “keeping” third party is, foreign
claimants will have to justify that they are entitled to the decedent’s assets:
- if they ground their claim on foreign acts, those acts will have to be officially
translated and legalised10;
- if they ground their claim on a foreign judgement, official translation and
legalisation of this judicial decision will be needed as well; if judicial
enforcement of such decision is sought, exequatur would then also be needed.
However, claimants may have to check on a case by case basis the existence of
bilateral international treaties or other international conventions that would alleviate
those formalities.

5.4 Which law is applicable to the required documents ?

As a principle, succession documents from abroad (for example: last will, death
certificate, documents asserting the heirs’ rights and capacity) are accepted as
established by the foreign state of the decedent’s last domicile, subject to the
conditions above mentioned under § 5.3.

In practice, banks and other third parties holding assets will show reluctance to abide
by foreign acts, be that because of their ignorance of the foreign law, and/or their fear
of releasing the assets to the wrong person. As a general statement as well, it is
constant that since a couple of decades, financial entities holding assets are reluctant
to release them out of their companies…

It will thus prove to be quite tedious to get those entities to cooperate, as they will
tend to “add” a lot of requirements to the law and make the paper work quite
burdensome to the unfortunate claimant. In such cases though, it is not difficult for
the heir’s Legal Counsellor to determine that, at some point, the “keeper” is in bad
faith and must be judicially compelled to release the assets. In such cases as well,
compensatory damages can also be awarded to successful claimants.

10
The legalisation may be done at the relevant Foreign Consulate in France. See Mariel REVILLARD,
Droit international privé et communautaire : Pratique notariale, Défrénois 6ème éd, # 766 and following.
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5.5 Once legitimized, what kind of information can one get from a third party
holding assets?

Once “legitimized”, the heirs will be entitled to get all needed information to fulfil
their rights and further their claim.

5.6 Once legitimized, what kind of information can you get from a bank holding
assets?

As to banks, in order to further their claims as above said, heirs should be able to get
for instance: statements of account up to the last 10 years11, the list of holders of
proxies, the list of any existing safe, certified amount of balance(s) at the time of
death and as of now, explanations as to suspect transactions on the account …
It is worth keeping in mind that all unjustified or abusive reluctance may be
overcome with a judicial order condemning the bank (or any third party / assets’
“keeper” for that purpose) to release the needed information, under financial
constraint.

5.7 Is there any difference in the information you get if you are a foreigner or a
local?

Subject to submitting all proper justifications above mentioned, there is no difference


in the information made available to foreigners or locals.

5.8 Is it possible to get information from a third party (or a bank) without being
formally legitimized?

Third parties and banks are subject to professional secrecy. Therefore, they will most
likely (and pertinently) deny access to assets and / or information pertaining to the
latter if the claimant is not properly and officially “identified”, ie if he does not
produce all required legitimized evidence as to his status (ie identity & capacity)
and his rights.

11
Claimants must be aware – as to bank account statements - that investigations and printing are billed to
them by the banks. Costs can be totally different from one bank to the other, so that in some cases such
research may end up being very expensive. Is this another way to “not cooperate” with claimants, in order to
postpone the release of the assets? Well, this could be subject to further discussion…
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5.9 What does one do if he can not provide the needed documents or the needed
information to fill in the required documents?

Of course, the flexibility of the “keepers” to release information, and eventually the
assets, will depend on whether (or not) they are subject to professional secrecy duties
& obligations. The stricter the obligations, the heavier the burden of proof will lay on
the claimant to justify his position.
Although, and again, if the keeper’s demands would appear abusive and uselessly
burdensome or “rigid”, the heir may always try to convince the Judge of the
rightfulness of his claim first. If successful, he will get in turn a judicial order
compelling the third party to yield to the claim.
In order to support their judiciary request, plaintiffs will have to provide the Judge
with whatever evidential elements of which they dispose (such as affidavits, will,
birth/death certificate), short of the said proper “required documents”. The drawback
of this last resort (judicial) solution is – as always – procedural costs and time…

5.10 Is it possible to freeze the assets if the claim on them is not clear or if time is
needed to provide the needed documents or are there any other ways as to
secure the assets?

Yes, definitely, a seizing order may be granted through a speedy proceeding by the
Juge de l’Exécution (the Enforcement Judge) in order to freeze the assets. The
petitioner presents a “Requête aux fins de saisie conservatoire” (= request for a
conservatory seizure), that will be granted provided that the claimant’s rights and
claim are properly evidenced, and if it appears that two conditions are met:

- Granting the seizure must be a matter of urgent necessity (= the “emergency”


requirement),
- The plaintiff’s rights must be in jeopardy (eg there would be an actual threat of
disappearance or embezzlement of the assets).

Shortly after the seizing authorization is granted, the plaintiff will have to file a
petition on the merits of the case with the regular competent juridiction (see above §
4.2). 12

12
See articles 210 and following of the “Décret n° 92-755 du 31 juillet 1992” , in the Appendix provisions
of the Civil Procedure Code.
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5.11 Who can retrieve the assets? Does someone need to be appointed locally?

All heirs and legatees are entitled to directly retrieve the assets, providing they meet
the burden of proof above stated (= to bring proper evidence as to their identity and
the rightfulness of their claim).

They also may appoint a local representative (a Lawyer, a Public Officer such as a
Notaire or a Huissier de Justice, an Agent….). However, if the representative is not
a professional, the claimant may expect the “keeper” to be suspicious (again!). This
will amount to demands for further documents, pertaining this time to the
representative’s capacity and power of attorney.

5.12 Are there any legal requirements a local lawyer would have to consider if he is
asked to retrieve assets for a foreign country, one of its public officers or a
foreign lawyer?

There are no specific requirements other than those stated in our national regulations
applicable to economical relations and financial exchanges with foreign
countries. 13

5.13 What kind of documents need to be filled in on the side of the third party
holding the assets?

In such case, the tax filing of a “Déclaration de Succession” is mandatory in France,


so that the proof of such filing will be asked by the third party holding the assets
before releasing them. 14
The Tax administration/authorities will then issue a “Certificat d’acquittement de
droits” if taxes were paid, or a “Certificat de non exigibilité de droits” if no taxes
were due.
Whether succession taxes will be paid in France or not will depend on the relevant
international tax treaty, if there is any applicable in the case at stake: see below §
5.18.
Also in some cases, there are declarations to be filed with the Customs
administration/authorities.

13
See Mariel REVILLARD, Droit international privé et communautaire : Pratique notariale, Défrénois
6ème éd, « Relations Financières avec l’Etranger » # 1008 and following.
14
As to the modalities and time frame for filing such “Déclaration de Succession” see Mariel REVILLARD,
Droit international privé et communautaire : Pratique notariale, Défrénois 6ème éd, « Fiscalité internationale
des successions » # 730 and following.
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This is so because, while individual residents in France may have foreign bank
accounts and may freely transfer money outside the territory, those accounts and
transfers (above 7600 euros) must be declared to the French Customs. 15

5.14 Are contacts with authorities necessary or mandatory? If yes, which authorities
and why?

In light of the above mentioned formalities and obligations, contacts with the Tax
and/or the Customs authorities will be mandatory.

5.15 Are authorities subject to act automatically? If yes, which authorities and why?

Authorities are not supposed to act sontaneously, other than to control a posteriori -
and if they deem fit - parties’ volunteered and spontaneous declarations.

5.16 Are there any tax issues to be considered (please stay general) ?

Yes, a “Déclaration de Succession” must be filed and in some cases taxes must be
paid in France before the assets can be lawfully wired / transferred abroad – see
above § 5.13

5.17 Is it possible to get a safe haven by your local tax autorities as to be sure that
every taxes were paid before transfering the assets?

To that purpose, the Tax authorities will provide a “Certificat d’acquittement de


droits” or a “Certificat de non exigibilité de droits” cf above § 5.13

5.18 Please make a list of the countries with which your country signed tax treaties
regarding successions?

The relevant tax treaties are listed in the chart below:

15
The obligation to declare the money transfers above 7600 euros applies to individual non-residents as well.
See Mariel REVILLARD, Droit international privé et communautaire : Pratique notariale, Défrénois 6ème
éd, « Détention d’avoirs et de comptes à l’étranger » # 1012 & following.
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5.19 Are there any export restrictions which need to be considered?

16
Yes, there are export restrictions in France on Art Work and Antiques.

5.20 Are there any investment rules to be followed in your country once assets are
part of a succession?

Foreign investments in France are strictly regulated, also in light with the fight
against terrorism and money laundering.
This regulation is complex and is provided in the Décret n° 2003-196 and the Arrêté
both dated of March 7th 2003. 17

5.21 Are there any risks of liability for a lawyer (foreign or local) as to the retrieval
of assets?

There are not specific rules here, so the lawyer’s (foreign or local) specific
deontological constraints and professional liability rules would set the limits as to
ways and means to retrieve assets.

5.22 Are there any risks of liability for the heirs?

Yes of course there are risks of liability for the heirs, if they do not respect the
provisions of the applicable law(s), eg: the law governing the Estate and ruling the
Succession, the law providing for Tax obligations and/or Customs declarations …
This is why – and to that extent at least - consulting a local legal counsellor will
always be advisable, in order to check all mandatory compliances the claimants will
have to respect.

5.23 Are there any measures to be taken before someone deceases as to simplify the
retrieval of the assets in your country?

16
See “ A l’heure de la mondialisation, le point sur l’exportation des oeuvres d’art”,
a synthetical presentation of the relevant applicable formalities at : http://www.gazette-
drouot.com/static/magazine_ventes_aux_encheres/guide_juridique_des_encheres/021_guide_juridique_des_
encheres.html
17
See Mariel REVILLARD, Droit international privé et communautaire : Pratique notariale, Défrénois 6ème
éd, « Investissements étrangers » # 1026 and following.
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It would be advisable to include in the Estate Planning process, apart from drafting
will(s) and maximizing tax savings, some ways to make sure that the heirs will get
the needed information in time, regarding the location of the assets.
Also, ahead, keepers of such assets should be informed of potential heirs’ identity, so
that heirs’ capacity could be easier to ascertain afterwards.

5.24 Is there anything else which needs to be considered?

To be mentioned here is the Proposal adopted by the European Commission on


October 14th 2009, which should greatly simplify succession rules in the European
community. 18

5.25 What would your practical advice be, to someone needing to retrieve assets
from your country? Is there any vademecum which should be followed?

Needless to say that, when and if facing any “local” difficulty, heirs and legatees
should not save on Lawyers’ fees … and on Lawyers’ precious help for that matter!
As we say in France (wise common knowledge …) and to end up with bon sens if
not legalese: …. “mieux vaut un qui sait que dix qui cherchent” !

18
See for instance on this matter the conference announcement posted by the European Law Academy
(ERA) on its website: “On 14 October 2009, the European Commission published its long-awaited proposal
for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic
instruments in matters of succession and the creation of a European Certificate of Succession (COM
(2009) 154), which aims to help settle international successions involving people living in the
EU…..”http://www.era.int/cgi-
bin/cms?_SID=32add90e677e141ec9288faea70d8c3deac2025700029369304886&_sprache=fr&_bereich=ar
tikel&_aktion=detail&idartikel=121048

Also see this comment in the European Journal (October 21st 2009) at :
http://europeanjournal.typepad.com/my_weblog/2009/10/eu-to-regulate-successions.html
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Bibliography :

ƒ Juris-Classeur PROCEDURE CIVILE :

- ENTRAIDE JUDICIAIRE INTERNATIONALE, Obtention des preuves à l’étranger par


Patrice MONIN-HERSANT, fascicule 124-2 ;
- CONTRATS ET OBLIGATIONS, Preuve, Règles générales par Daniel VEAUX, fasc. 10
Art. 1315 et 1316 ;

ƒ DIBOS-LACROUX SYLVIE : SUCCESSIONS LE GUIDE PRATIQUE, PRAT, 8EME


ED. 2007

ƒ PROTON AGNÈS, NATIONAL REPORT FOR FRANCE, A.I.J.A. ANNUAL CONGRESS


TORONTO AUG 2007 : « To Trust or not to Trust : opportunities and risks in International
Estate Planning”

ƒ REVILLARD MARIEL : DROIT INTERNATIONAL PRIVE ET COMMUNAUTAIRE, PRATIQUE


NOTARIALE, DEFRENOIS, 6EME ED 2006.