Plan Ahead/I Love Nice
Volume XXI, Issue 25
This week one of our clients had a shock, as did we. He lost his young wife very suddenly not too long ago with little time to prepare for her passing, and never dreamt he wouldn’t be the first to go. The property they own in France is in both of their names and were told from the very beginning that the property would transfer virtually automatically to the second spouse upon the death of the first without any inheritance taxes to pay. We say this all the time to our clients, as do the Notaires with whom we work.
Many Americans hold their assets in a trust, as did they. His wife had no assets in her name, as everything was in both of their names. They never saw the need for her to have a will…until now.
To assist him in the transfer of the title, I contacted the Notaire who had handled their file years ago. They asked a series of questions:
• Did your wife have a will or a trust (in the USA, France, or elsewhere)?
• Had she made a designation of the law applicable to her estate in the deed?
• Had you drawn up a pre-nuptial contract?
• Have you always lived in California?
• Did your wife have children from a previous marriage?
• Are your wife’s parents alive or deceased?
• Do you only own real estate in France, or do you own other assets, such as: bank accounts, companies, pensions, rents…or have any liabilities such as loans, bills due on death, etc.?
• Was the property in France rented and if so, please provide a copy of the lease?
• Had your wife made any major donations/gifts during her lifetime?
After that, the Notaire wrote a long list of documents to provide, including his wife’s death certificate (apostilled and translated); his wife’s birth certificate (apostilled and translated); their marriage certificate (apostilled and translated); his birth certificate (apostilled and translated); copies of their passports, the contact details of the Syndic of the property owned in France and all details of all other assets held in France.
In reviewing the situation, the Chambre de Notaires outlines all of this in English on their website.
Here’s a synopsis of that article, last updated Thursday, January 20, 2022:
Inheritance Rights of the Surviving Spouse
In the case of inheritance between spouses, the rights of the surviving spouse are as follows:
RIGHTS OF THE SURVIVING SPOUSE AND INHERITANCE
If the deceased person had children with the surviving spouse, the surviving spouse has the option to choose either the usufruct (the right to use and receive income) of the entire property or ownership of a quarter share. If no choice is made within three months of the request by the heirs, the surviving spouse will be considered to have chosen the usufruct.
If the surviving spouse passes away before making a choice, the same options apply. It is important to consult a notary to analyze the situation and make an informed decision.
The surviving spouse’s usufruct can be converted into a life annuity upon their wish or upon the request of an heir. If there is a disagreement, the matter can be referred to a judge until the final partition is carried out. However, the consent of the surviving spouse is required to convert the usufruct of their main residence and furniture within the accommodation.
The usufruct can also be converted into capital, but this requires mutual agreement between the surviving spouse and the heirs.
If the Deceased leaves children from a previous union:
The surviving spouse has no choice and inherits a quarter share of the deceased’s property.
If the Deceased does not leave children but has a father and mother:
The surviving spouse inherits half of the property, while the other half is divided equally among the in-laws (father and mother).
If the Deceased leaves only a father or mother:
The surviving spouse inherits three-quarters of the property, and the remaining quarter goes to the stepfather or stepmother.
If the Deceased has no children, grandchildren, father, or mother:
The surviving spouse inherits everything, except for any property received through donation or inheritance from the deceased’s ascendants (parents or grandparents) that still remains part of the inheritance.
Rights of the surviving spouse as a tenant:
If the surviving spouse is the tenant of the main residence, the rents are paid through inheritance by the other heirs.
Note regarding wills:
The rules mentioned above are applicable in the absence of a will. If a will exists, it is important to consult a notary to determine the share of the inheritance for the surviving spouse. The surviving spouse cannot be completely disinherited because, in the absence of descendants, they are entitled to 1/4 of the succession as a forced heir.
RIGHTS OF THE SURVIVING SPOUSE ON HOUSING
Temporary right to housing (for one year):
In any circumstance, the surviving partner has the right to reside in the main residence and utilize the furniture within that residence, free of charge, for a period of one year following the death. If the surviving partner is a tenant of the property, the rental payments are covered through inheritance, which means they are paid by the heirs.
Life interest right to housing (permanent right of residence):
Furthermore, unless explicitly stated otherwise in a notarial will, the surviving partner possesses the right to reside in the main residence and use the associated furniture until their own death. This right is dependent on the inheritance and can be claimed by the surviving partner.
To avail themselves of this right, the surviving partner must assert their claim within one year of the death. It is crucial to promptly consult a notary to safeguard these rights. An inventory of the furniture and an assessment of the property’s condition can be conducted to prevent potential disputes.
In exceptional cases where the current accommodation no longer meets the needs of the surviving partner, they have the option to rent it for purposes other than commercial or agricultural use. This allows them to acquire the necessary resources for an alternative housing solution, such as a retirement home. The right to use and reside in the property is subtracted from the inheritance share, which is acquired by the surviving partner in full ownership. If the value of this right is lower than the share of the inheritance, the surviving partner is entitled to a supplemental amount. Conversely, if the value exceeds the share of the inheritance, the surviving partner retains all the benefits and owes nothing to the other heirs. Through mutual agreement, the surviving partner and the other heirs can convert this right into a life annuity or a capital sum.
Additionally, when dividing the estate, the law grants preference to the surviving partner in terms of relinquishing the housing and the furniture contained within it. In cases where the surviving partner owes a sum of money (balance) to the other heirs during the partition, payment periods may be granted.
Lastly, if necessary, the surviving partner can potentially claim a pension from the heirs during the year of death.
The bottom line is this: PLAN AHEAD!
When purchasing a property in France, be sure that the title is in the names of the correct parties and that you have the necessary structure in place to avoid the dilemma in which my client finds himself.
Remember that 1) you will not get the answers you seek if you don’t ask the right questions (do not assume that you will be fully informed by the Notaires or the agents) and 2) it’s best to consult with professionals designed to advise (this is not the primary role of the Notaire, believe it or not).
We recommend contacting our tax advisor, Jonathan Hadida. For more information on how to reach him, please see this page on our website…and be sure to tell him we sent you!
IT PAYS TO COMPLAIN
In Nice, my apartment sits on a pedestrian street filled with restaurants and shops. I’ve always loved the fact that there is no noise from traffic and only the chatter of pedestrians and diners. In the summer, when the street is extremely busy, the buskers come out to perform. The music has never bothered me. With double-paned windows, when closed, I hear virtually nothing, except for one thing: the Afro-Brazilian Capoeira dancers who perform using bongo drums and firey cords to mark the height of their flips in the air.
They make me crazy! They can be heard late into the evening, just when I might be dozing off to sleep…meaning there’s no chance to get any zzz while the bongos are piercing the night air. So, I complained!
I sent the following letter to the Mayor of Nice, Christian Estrosi, and posted it on Facebook and in other venues.
Cher M. Le Mayor,
J’habite dans la rue Masséna, au cœur de la partie piétonne de Nice et du Carré d’Or, que j’adore à l’exception d’une perturbation majeure : les artistes de la Capoeira Afro-Brazilién qui utilisent des tambours bongo et du feu pour leur performance dans la rue.
Le bruit des gens et la musique sont un beau vacarme, mais ces artistes créent un niveau de bruit qui dépasse ce qui devrait être autorisé.
Il m’arrive souvent de ne pas pouvoir accéder à ma propre porte parce qu’ils sautent par-dessus un cordon enflammé ou bloquent la rue pour faire des sauts périlleux au milieu de la rue. Les clients des terrasses des restaurants sont parfois intéressés, mais le plus souvent agacés par le bruit.
Je demande à la ville de reconsidérer l’autorisation qui leur a été donnée de se produire. C’est la seule véritable nuisance à laquelle nous devons malheureusement tous faire face.
En vous remerciant de votre attention, je vous prie d’agréer, Madame, Monsieur, l’expression de mes sentiments distingués.
Adrian B. Leeds
Dear M. Mayor,
I live on the rue Masséna, in the heart of the pedestrian area of Nice and the Carré d’Or, which I love, except for one major disturbance: the Afro-Brazilién Capoeira artists who use bongo drums and fire for their street performance.
The noise of the people and the music are pleasurable sounds, but these artists create a level of noise that exceeds what should be allowed.
I’m often unable to access my own door because they jump over a flaming cord or block the street to do somersaults in the middle of the street. Customers on restaurant terraces are sometimes interested, but more often than not are annoyed by the noise.
I’m asking the city to reconsider giving them permission to perform. It’s the only real nuisance we all have to deal with.
Thank you for your attention.
Yours sincerely, Adrian B. Leeds
Much to my surprise and delight, I received a letter this week from the Director of the Municipal Police!:
De la part de Monsieur le Directeur de la Police Municipale
Par courriel en date du 10 juin 2023, vous attiriez l’attention de Monsieur le Maire sur les nuisances sonores générées par les artistes de rue, au sein de la rue Masséna, à Nice.
En réponse, je vous indique que la mairie de Nice a souhaité mettre fin aux nuisances sonores, notamment en ce qui concerne les groupes causant du tumulte via les amplificateurs ou utilisant des animaux.
A ce titre, le 15 juin dernier, la ville de Nice a pris un nouvel arrêté publié par Monsieur le Premier Adjoint pour la saison estivale à venir.
Ce dernier stipule qu’il n’y aura désormais ni commission, ni d’autorisation à délivrer.
Par ailleurs, les capoeristes ont l’interdiction de se produire sur la ville et aucune autorisation n’a été délivrée pour les groupes de ce type.
Ainsi, je vous informe que des consignes ont été données aux agents en charge de ce secteur, afin de faire respecter les dispositions mises en place, en verbalisant et en évacuant ces personnes au titre du nouvel arrêté municipal en cours.
En cas de nécessité, je vous invite à faire appel au Centre Opérationnel de Commandement de la Police Municipale au 04 93 53 53 53, disponible 24h/24 et 7j/7, pour une intervention dans les meilleurs délais.
Restant à votre écoute, je vous prie de croire, Madame LEEDS, à l’assurance de mes respectueux hommages.
Directeur de la Police Municipale
DGAPSS-DDSECU-DIRECTION DE LA POLICE MUNICIPALE
MAIRIE DE NICE – 06364 Nice cedex 4
In an e-mail dated June 10, 2023, you drew the Mayor’s attention to the noise pollution caused by street performers on rue Masséna in Nice.
In response, I’d like to point out that Nice town council has decided to put an end to noise pollution, particularly from groups causing uproar via amplifiers or using animals.
On June 15, the City of Nice issued a new decree for the coming summer season.
This stipulates that from now on, there will be no commission or authorization to issue.
Furthermore, capoerists are forbidden to perform in the town, and no authorization has been issued for groups of this type.
I hereby inform you that the officers in charge of this sector have been instructed to enforce the provisions in place, by issuing fines and evacuating these people in accordance with the new municipal by-law currently in force.
If necessary, I invite you to call the Police Municipale’s Centre Opérationnel de Commandement on 04 93 53 53 53, available 24/7, for a rapid response.
Please accept, Mrs LEEDS, the assurance of my highest regards.
Directeur de la Police Municipale
DGAPSS-DDSECU-DIRECTION DE LA POLICE MUNICIPALE
MAIRIE DE NICE – 06364 Nice cedex 4
To this amazingly wonderful news, I responded with three words:
The Adrian Leeds Group®