What can be transferred by way of will or by donation?
You can give during your lifetime to the person of your choice, all or part of your estate. You can also write a will to change the sequence and the shares of the heirs as stipulated by the law. But children (and their descendants), and if none, the surviving spouse, are called « rightful heirs « : these heirs are entitled by law to a minimum share of the estate. This share is calculated by taking into account the assets left by the deceased as well as donations and benefits previously granted that will be collected and counted with the assets left by the deceased. If, as a result of a donation prior to the death, the rightful heirs do not get their minimum share, the recipient of the donation will, at their request, have to reimburse the heirs the amount they are entitled to. Similarly, a will or a donation between spouses can only be executed if the share of the rightful heirs is respected. Therefore, you can only dispose of a certain portion of your estate called “freely disposable portion”. By taking assets out of the disposable portion of your estate, through a donation or a will, you can favour the person you want even if this person is not one of your heirs. After death, the heirs may, however, give their consent in order to fully execute the donation or the will.
Since the 1st of January 2007, they can also give their consent during the lifetime of the one who agrees to give by way of donation or will. It is then necessary to establish a specific act which must be made by two notaries: this is the “anticipated waiving to the action by reduction”, called « family pact ». But if the waivers are in need at the deceased’s death, the waivers can challenge this waiving. If there are children or other heirs, the spouse must deduct from his/her legal rights what he or she has received by way of donation or will (see above "Who can inherit ?").
What is the disposable part of your estate?
You can give or bequeath the disposable part of your estate to the person of your choice. The size of this portion of your estate depends on your family situation. Be careful : if one of your children dies before you, his children will inherit in his name and share the assets your child would have inherited.
- If you have a child (legitimate, natural or adopted) : this child will receive at least half of your estate. You are free to dispose of the other half.
- If you have two children : they must receive two thirds of your estate divided equally between the two of them. You are free to dispose of the remaining third.
- If you have three or more children : they must get three quarters of your estate, divided equally between all of them. You are free to dispose of the remaining quarter.
- If you do not have children but you are married : your spouse must receive at least one quarter of your estate. You are free to dispose of the remaining three quarters.
- If you do not have children, and you are not married : you are free to dispose of all of your assets.