In the event of the death of the debtor of a writ of execution, there are ways of continuing to collect a debt. It all depends on the state of the estate.
The debtor is deceased and his heirs are known
When the creditor knows the debtor's heirs, the progress of the recovery depends on the state of the estate.
The succession option
To pursue recovery against the heirs, you must first ensure that they have taken a position on the estate.
In the event of death, the heir can do three things:
- Accepting the succession,
- Accept the estate up to the amount of the net assets,
- Refuse the succession.
Acceptance up to the amount of the net assets allows the heir to accept the estate after deduction of the debts. For example, if there are liabilities of €5,000 against assets of €7,000, the heir who accepts up to the net assets will receive the balance of €2,000.
The choice made by the heir is known in law as the succession option.
The three options are exercised differently.
Express or tacit acceptance of the succession
Express acceptance occurs when the heir (the successor) accepts his or her status as heir, either by a private contract or by a notarial deed. All this is set out in article 782 of the Civil Code:
"Acceptance pure and simple may be express or tacit. It is express when the successor assumes the title or capacity of accepting heir in a notarial or private deed. It is tacit when the successor seised performs an act which necessarily implies his intention to accept and which he would only be entitled to do in his capacity as accepting heir".
Acceptance of net assets
Acceptance up to the amount of the net assets must be declared. The declaration is made either at the registry office or at a notary's office: "The declaration must be made at the clerk's office of the court in whose jurisdiction the succession is opened or before a notary. It includes the election of a single domicile, which may be the domicile of one of the acceptors up to the amount of the net assets, or that of the person responsible for settling the estate. The domicile must be in France. (article 788, paragraph 1, of the Civil Code).
Waiver of inheritance
Lastly, renunciation of succession is carried out in the manner provided for in article 804 of the Civil Code:
"Waiver of an inheritance cannot be presumed.
In order to be effective against third parties, the renunciation made by the universal heir or heir by general title must be addressed to or lodged with the court in whose jurisdiction the succession was opened or made before a notary.
Within one month of the renunciation, the notary who received it shall send a copy to the court within whose jurisdiction the succession was opened.
Heirs have not opted out
The heirs have 4 months from the opening of the estate to opt.
In the absence of an option, article 771 of the Civil Code allows creditors of the succession, co-heirs, heirs of subsequent rank or the state to serve them with a summons to opt by bailiff.
Article 771 of the Civil Code states that :
"The heir may not be forced to opt before the expiry of a period of four months from the opening of the succession.
On expiry of this period, he may be summoned, by extrajudicial act, to take sides on the initiative of a creditor of the succession, a co-heir, an heir of subsequent rank or the State".
The summons to opt will be served by the court commissioner (bailiff).
The heirs have opted
If the heirs accept the estatethen the provisions of article 877 of the Civil Code must be applied, according to which :
"A writ of execution against the deceased is also enforceable against the heir eight days after it has been served on him.
Notification of the writ of execution means that the foreclosure proceedings can be resumed once the aforementioned period has expired.
If the heirs accept the estate up to the amount of the net assetsrecovery will be blocked. Creditors will have to wait for the notary to settle the estate before they can find out what the assets and liabilities are.
Acceptance up to the amount of the net assets is, in this respect, interesting for debtors who wish to paralyse collection.
If the heirs renounce the estateIn this case, the estate is vacant.
The debtor has died and his estate is vacant
When the debtor dies and has no known or accepting heirs, the estate is vacant within the meaning of article 809 of the Civil Code:
"The estate is vacant:
1° When there is no one to claim the succession and there is no known heir ;
2° When all known heirs have renounced the succession;
3° If, after the expiry of a period of six months from the opening of the succession, the known heirs have not opted, either tacitly or expressly".
The pursuing creditor must then request the appointment of the Administration des domaines as curator of the vacant estate, by means of a petition to the President of the judicial court (articles 809-1 et seq. of the Civil Code).
The Administration de Domaines will settle the estate's liabilities in accordance with articles 810 et seq. of the Civil Code.
The death of the debtor and the seizure of property
When it comes to property seizure proceedings, the death of the debtor is not a major obstacle.
The declaration of inheritance must be registered with the tax authorities within (article 641 of the general tax code) :
- 6 months if the death occurred in mainland France,
- 12 months in all other cases.
When the deceased owns property, it is transferred to his heirs. As the transfer of ownership is not enforceable against third parties until the deeds have been published in the property register, the notary will endeavour to carry out this publication.
If the devolution of the estate is not published within the 6-month period, creditors will be able to request that the estates be appointed as curators of the vacant estate.
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