Notarial Practice

1. The Notary's Role and Responsibilities

A notary is a public and ministerial official appointed by the Minister of Justice, entrusted with a public service mission. Their core responsibilities include:

• Drafting, authenticating, and preserving certain legal acts.
• Providing legal advice to clients during the preparation of these acts.

In some jurisdictions like France, certain legal acts must be exclusively drawn up by a notary, giving them exclusive jurisdiction over these acts.

2. Main Areas of Notarial Involvement

3. Essential Functions

• Authenticating legal acts ensures their validity and enforceability.
• Preserving documents guarantees their security and accessibility over time.
• Legal advice helps clients understand their rights and obligations, ensuring informed decisions.

A notary acts as a trusted public officer who guarantees the legality and authenticity of important legal transactions.

1. Notarial Role in Real Estate Sales

In France, notaries have exclusive jurisdiction to establish the deed of sale for real estate transfers. Their involvement:

• Secures the legal relationship between parties.
• Guarantees the transaction's validity and value.

2. Preliminary Verifications by the Notary

a) Legal Situation of the Parties

• Identity verification: Requires birth certificate and photo ID (passport or identity card).
• Legal capacity: Checks if parties can contract alone (minors or protected adults need representation).
• Criminal record check: Ensures buyer is not banned from purchasing residential property.
• Power of attorney: Validates if a third party signs on behalf of an absent party.

b) Legal Situation of the Property

• Land registry check: Identifies the property and its boundaries.
• Mortgage statement: Confirms seller’s ownership rights and reveals any mortgages.
• Urban planning regulations: Checks for easements or restrictions.
• Pre-emption rights: Verifies if municipality or others have priority purchase rights.

3. Mandatory Content of the Deed of Sale and Appendices

The deed must specify:

Additional legal requirement: Seller must provide a real estate diagnostic report informing the buyer about the property's condition before sale.

4. Land Registration

• Ownership transfer: Occurs when the deed of sale is signed.
• Enforceability against third parties: Only after the deed is published in the land registry.
• Notary’s duty: To register the deed in the land register to finalize the transfer.

Key point: The notary ensures both the legality of the transaction and its public registration, securing ownership rights.

1. The Will

• A will is a legal document by which the testator transfers all or part of their assets (called bequests) to one or more legatees.
• It must be written during the testator’s lifetime but only takes effect upon death.
• A notary is not mandatory but recommended to:
  • Ensure the authenticity and date of the will.
  • Register the will in a national database accessible by notaries across France after the testator’s death.
• Family members cannot be completely excluded from inheritance under French law, but they may waive their right to inherit in advance.

2. The Donation

• A donation is a lifetime transfer of assets for free from the donator to a beneficiary.
• The beneficiary must expressly accept the donation for it to be valid.
• A donation requires a notarized deed to:
  • Ensure the donator is fully informed of the consequences.
  • Verify the donator’s genuine consent.
  • Confirm the legal effectiveness of the donation.
• Donations can involve any asset type: real estate, furniture, money.
• However, like wills, certain family members (children, grandchildren, spouse) cannot be fully excluded from inheritance by donation.

3. Key Legal Constraint

Under French law, family members have protected rights and cannot be completely excluded from inheritance, whether by will or donation, unless they waive their rights in advance.

1. Succession Settlement Upon Death

Settling an inheritance after death involves four key steps to ensure proper distribution and legal compliance.

2. Forced Heirs and Minimum Share

• Forced heirs: Certain family members legally entitled to a minimum share of the inheritance.
• If a donation or bequest violates this minimum share, an heir can challenge it via a reduction action during succession.
• To avoid disputes, heirs may enter an inheritance agreement (anticipated waiver of reduction action), signed before two notaries, specifying:
  • The heir renouncing their minimum share and what exactly is renounced.
  • The beneficiary receiving the donation or bequest.
  • Legal consequences for the renouncing heir.
• The donor or testator's consent is required for this agreement.

3. Step 1: The Notoriety Act

• Purpose: Identify all heirs entitled to the inheritance and their respective rights.
• Mandatory if the succession exceeds €5,000.
• Conducted by a notary who collects documents (family record book, marriage contract, wills, donations).
• Heirs retain the freedom to accept or refuse the succession.

4. Step 2: The Deceased's Inventory

• The notary compiles a detailed inventory of the deceased’s assets and debts.
• Requires documents like property titles, bank statements, and savings books.
• Provides a comprehensive overview of the estate’s value.

5. Step 3: Mortgage and Tax Formalities

• The notary prepares two key deeds:
  1. Real estate certificate: Legal deed transferring real estate assets, published in the land registry.
  2. Inheritance declaration: Tax document declaring assets to authorities, enabling inheritance tax payment.

6. Step 4: Division of Property

• When multiple heirs share rights, joint ownership (indivision) arises.
• Heirs may choose to:
  • Divide the property amicably or by court order if disagreements occur.
  • Become individual owners of their respective shares.
• For real estate, division is formalized by the notary.

7. Key Vocabulary

> The notoriety act is mandatory for successions exceeding €5,000 and must be conducted by a notary to identify heirs and their rights.