Donation: Inheritance with peace of mind

A gesture full of richness

A donation allows you to pass on an asset or a sum of money to someone else free of charge, without expecting anything in return. It's a gesture of pure generosity. But it can also be a source of many other advantages:
- you can divide all or part of your assets between your heirs during your lifetime, and/or give preference to people of your choice rather than waiting for the estate to be settled
- you preserve family harmony by avoiding the conflicts that can arise when settling an estate
- optimize the management and transmission of your estate
- you enable the beneficiary(ies) of the gift to get on in life, or to carry out a project close to their hearts
- you benefit from differenttax advantages, depending on the person to whom you are giving and the type of donation. For example, you can give up to 100,000 euros to a child without paying transfer duties, or 31,865 euros to a grandchild (donation of a sum of money by a donor aged under 80 to a donee aged at least 18), every 15 years.

Giving with reservations

The freedom to give is not infinite. To avoid abuses, the law sets limits concerning :
- the donor. Some people need protection, either because of their age or because their mental capacity prevents them from understanding the risks involved in making a donation, and from discerning fraudulent maneuvers aimed at misappropriating their assets. This is why the law prohibits an unemancipated minor from donating property belonging to him or her. And even their legal representative (parent or guardian) cannot do so on their behalf. In the case of protected adults, the latitude to make a donation will depend on the protection regime. But in all cases, the incapable adult cannot act alone.
- the donee (beneficiary). In principle, everyone is entitled to receive a donation. However, as in the case of a will, certain people who could influence the donor's choice cannot be designated as beneficiaries of a donation. These include, for example, the attending physician, employees of home help and retirement homes, domestic servants, professional guardians and curators (and the public institutions and associations for which they work), ministers of religion...
- what you can give. Even the most generous donors cannot give away their entire estate as they wish. To avoid any squandering, a portion of his assets (the "reserve héréditaire") is automatically reserved for the donor's heirs (children, etc.). They cannot be deprived of it. On the other hand, the other part of the estate (the available portion) can be freely given or bequeathed to the person of one's choice (apart from the exceptions mentioned above).

To do
Before making a donation, whatever the form and beneficiary(ies), consider drawing up a balance sheet with your notary. He or she will advise you on the most appropriate solution for your current and future needs.

Get it right

A donation is not a trivial act. If you want to be sure that it has the desired effect, there are a minimum number of rules to observe:
- a donation must be drawn up by a notary. Failure to do so may result in the gift being annulled. A notary's involvement provides a number of guarantees (the deed is indisputable, there's no risk of it being lost or destroyed, etc.) and ensures that you make the right choices and have all the information you need to understand the family, estate and tax consequences of your gesture.
- it is possible to include specific clauses to protect the donor's interests, depending on the circumstances and objectives involved. For example, a gift with encumbrances (obliging the donee to perform certain acts if he wishes to benefit from the gift), a gift with a conventional return clause (allowing the donated property to revert to the donor's estate in the event of the donee's predecease if he does not wish to receive the gift), or a gift with a return clause (allowing the donated property to revert to the donor's estate in the event of the donee's predecease).of the donee if, for example, he or she has no children), a gradual donation (allowing the donor to give full ownership of a property to a first beneficiary who is obliged to keep it until the end of his or her life and to sell it to a second beneficiary who is obliged to keep it until the end of his or her life and to sell it to a third beneficiary). at the end of his or her life, and to pass it on to a second beneficiary designated in the deed of gift), a gift with usufruct reserved...

Gifts between spouses to protect your spouse

Spouses inherit from each other without paying inheritance tax. But the surviving spouse's share is not always sufficient to meet his or her needs. That's why it's so important to make a gift, which will improve his or her material situation by enabling him or her to receive more than the law stipulates. Gifts between spouses have many advantages, particularly when there are children, especially if they were born of another union, or if the deceased left no ascendants or descendants. Gifts between spouses can be made at any time after marriage. Generally speaking, couples think about it when they buy their first home, or when their first child is born. But the sooner the better. Gifts between spouses are not made once and for all. If your assets or needs change, it is possible to modify its content (always before a notary). It will take effect only on the death of one of the spouses, and will relate only to the assets that the donor spouse will leave on his or her death.

Shared gifts to divide assets between children

To ensure that none of your children is prejudiced, a shared donation is the ideal solution. It is both a gift and an anticipated division of your estate. A shared gift :
- avoids the difficulties and family quarrels that can arise when settling an estate; facilitates the allocation of assets in accordance with the donor's wishes and the needs, abilities or aptitudes of each child (the donees).
- You are free to compose the lots to be distributed among your children as you see fit. However, each child must receive at least his or her share, as stipulated by law. If this is not the case, a child who feels he or she has been wronged can take action to reduce the inheritance.

Not just for children

Since 2007, gift-sharing has not only been available to children. The donor can also give to grandchildren. This is known as a "transgenerational shared donation". Inheritance reform has also enabled blended families to organize their inheritance and divide their own or joint assets between their children from successive marriages in a single shared donation.

A simple donation to help one of your children

You have two options:
- if you wish to provide one-off assistance to this child, without giving him or her any special advantage over his or her brothers and sisters, you can make a gift in advance of his or her inheritance;
- if your intention is to give the child an advantage over the others, you can make a gift "outside the inheritance". In this way, you can give more, while remaining within the limits of the rules governing the available portion and the hereditary reserve. On the other hand, if the gift encroaches on the share of your siblings, they may challenge the gift when you open your estate.

Gifts by hand and customary presents
Who hasn't received (or made) a small gesture on the occasion of a birthday, an exam success, a wedding... Is this a gift by hand or a customary present? These two notions are often confused. But they have very little in common. A gift of use is a gift whose value is related to the lifestyle and financial capabilities of the person making it. A gift of use is not "reportable" to the donor's estate, i.e. it will not be taken into account when the estate is opened and the assets distributed among the heirs. Another difference with manual gifts is that they are not subject to gift tax, due to the modest amount or value of the property donated.

Marie-Christine Ménoire