Succession agreement: when it makes sense and how it works

Quick overview

In a succession agreement, the testator calls the other party or a third party as an heir or legatee and the other party accepts this. It must take the form of a public deed, i.e. a notarial deed. It may be concluded by an adult testator who is fully competent, or by a testator who is of limited capacity with the consent of a guardian. A succession contract cannot be made for the whole estate: one quarter must remain vacant so that the testator can decide otherwise, typically by will. Modification or revocation of the contract requires the consent of both parties.

Why a succession contract is stronger than a will

Unlike a will, it is not a unilateral acquisition for death, but a contract. That is its main strength. While a will can be rewritten, revoked or replaced by a new will at any time, a contract of inheritance requires the other party’s cooperation. This is why it is perceived as a much stronger instrument in families and in the business environment.

A typical example from practice: parents want to make sure that the family home goes to their daughter, who lives in it for a long time, invests in it and takes care of her parents. The will itself may be psychologically and legally less certain for the daughter, as it can be unilaterally changed by the parent later. The inheritance agreement gives the daughter a much stronger position.

What are the basic terms of the succession contract

The law lays down several precise rules. The succession contract must take the form of a public deed, i.e. a notarial deed. At the same time, it can only be concluded and amended by the parties acting in person. It is therefore not a document that can be “sent for signature” like an ordinary private contract.

The contract of succession may be concluded by an adult testator who is fully competent. If the deceased has limited capacity, he/she can only conclude the contract and modify the obligations under it with the consent of the guardian. This is particularly important for elderly clients who have been previously restricted in their capacity by the court.

The succession contract must also be entered into voluntarily. This is not only a consequence of the special rules on the contract of inheritance, but also of the general rules on legal negotiations and contracts. If someone signed the contract under duress or in circumstances excluding free will, this would be a very serious problem.

It is not possible to acquire the entire estate by a succession contract

This is one of the most important rules and a common source of confusion. A succession contract cannot be made for the whole estate. One quarter must be left free so that the testator can take care of it according to his or her specifically expressed will. If he wants to leave even this quarter to a contractual heir, he can do so by will.

In practice, this means that the succession contract and the will are often complementary. The contract “fixes” the main part of the estate and the will takes care of the rest.

A practical example: a businessman wants his son, who has been working there for ten years, to take over the company after his death. He can secure the main part of the assets for his son by a succession contract, but part of the estate must remain vacant. This can then be dealt with by the testator in a separate will, for example for the benefit of other children or a spouse.

Non-mutual heirs and the mandatory share

The succession contract cannot circumvent the protection of non-nominal heirs. If the death arrangement would reduce the obligatory share of a non-minor heir who has not renounced his right and has not been disinherited, he is still entitled to the obligatory share. This is particularly important if the testator has children and wants to benefit only one of the descendants or another person altogether by the contract.

The contract of inheritance is therefore a powerful instrument, but not absolute. If you have children, you must always consider their position as non-negligible heirs when drawing up the will.

Can conditions be put in the succession contract?

Yes. The general provisions of the Civil Code on conditions apply to the conditions in the succession contract. Simply put: conditions are possible but must not be contrary to the law, good morals or public policy.

A condition such as ‘the heir will receive the property if he completes university’ may be permissible in a particular case. On the other hand, a condition which would force the heir to act illegally or impermissibly interfere with his personal life will no longer be permissible. Conditions related to the management of property or the care of a particular asset or person usually work more safely than overly invasive personal requirements.

Inheritance contract between spouses and fiancés

Special arrangements apply to spouses. They may enter into a succession agreement whereby one party calls the other as heir or legatee and the other accepts this, or they may call each other in this way. The same may be done by the betrothed in the event of the marriage, but the contract does not take effect until the marriage has been celebrated.

The rule for divorce is also very important.The rights and obligations under the contract of succession are not automatically terminated by the dissolution of the marriage, unless the parties themselves agree to this in the contract. After the divorce, however, either party can ask the court to annul the contract of succession. However, the court will not grant the application if it is directed against the person who did not cause the breakdown of the marriage and did not consent to the divorce.

This is one of the things that people often don’t realize. Many people feel that divorce “automatically erases” everything. This is not the case with an inheritance agreement. If the spouses want the agreement to be extinguished by the divorce, it is wise to put that directly in the text.

What the contract of succession does not prohibit the testator from doing

The contract of succession does not prevent the testator from disposing of his property as he wishes during his lifetime. This means that the testator can sell, gift or otherwise transfer the property during his or her lifetime. However, if he or she has made a provision for death or entered into a deed of gift in a way that is incompatible with the contract of inheritance, the contracting heir may claim that these legal acts are ineffective.

This is practically very important. A contract of inheritance is not an “asset freeze”. It is a powerful tool in the event of death, but it does not mean that the testator can no longer do anything with his or her property during life.

How a succession contract can be amended or revoked

A succession contract cannot be unilaterally revoked or amended. If the parties want to modify it, they must both agree to do so and the modification again requires a public deed. In addition, the law expressly states that the testator may also cancel his obligations under the contract of succession by making a will, but the consent of the contracting heir in the form of a public deed is required for such cancellation to take effect.

In practice, it is therefore not enough to “make a new will and pretend that the old contract is no longer valid”. It will not work without the consent of the other party.

When can a succession contract be invalid

Invalidity can have several reasons. The most typical is lack of form, i.e. when the contract is not a notarial deed. However, the law expressly allows that such an invalid succession contract may nevertheless have the validity of a will if it otherwise meets all the requirements of a will. This is a very important practical safeguard.

Further problems may arise if the conditions of the testator’s capacity are not met, if the personal conduct of the parties is lacking or if the content of the contract contravenes the general rules on contracts. In practice, vagueness is also sensitive: if it is not clear enough who the testator is calling or what property the contract is referring to, this opens the door to litigation.

When does a succession contract make sense

In everyday life, it is particularly useful in three situations. Firstly, where the testator wants to protect a particular heir in the long term and give him stronger security than a mere will. Secondly , in the case of a family estate or business, where continuity and predictability are important. And thirdly, between spouses or fiancés who want to have the succession of property clarified in advance.

Conversely, not every family needs it. If someone simply wants to determine who will inherit current assets, a will is usually simpler, cheaper and more flexible.

Summary

A succession agreement is the strongest inheritance title because it binds the testator much more tightly than a will. It must be executed in the form of a notarial deed, can cover no more than three quarters of the estate and cannot be unilaterally amended or revoked. It strongly protects the contractual heir, but at the same time requires careful preparation, as it must also respect the rights of non-nominee heirs and the rules of the Civil Code. In practice, it makes the most sense where long-term certainty is needed, for example in the case of a family home, a company or between spouses.