We accumulate our wealth throughout our lives. Although our thoughts are rarely directed towards what assets we will leave and to whom we will leave them after our death, there will come a time when our assets will pass into the hands of our heirs. How do we dispose of our assets so that this is done in accordance with our will? Basically, two legal constructions can be used for this purpose, namely wills and donations.
At this point, it is also worth pointing out that, in addition to these, a life contract may be used to transfer ownership of real estate during one's lifetime. However, it is characterised by the fact that only real estate can be acquired under it, while guaranteeing its current owner residence, maintenance and care. As this type of agreement is rarely decided upon by the parties in practice, the topic of today's entry will be shortened to only discuss the legal issues related to wills and donations.
From the following text, you will learn first and foremost:
- What does a donation agreement consist of?
- Can making a donation during your lifetime affect your inheritance?
- What are the key differences between a donation and a will, and in what circumstances is it appropriate to use these different legal constructions?
After a brief introduction, I invite you to read on.
Donation agreement
According to Article 888 of the Civil Code:
"By a donation contract, the donor undertakes to render a gratuitous service to the recipient at the expense of his or her estate."
Bearing in mind the above code regulation, it can therefore be concluded that a donation contract is a gratuitous consideration whereby one party (the donor) transfers an asset(s) of his or her estate to the other party (the donee). Importantly, the law does not indicate any restrictions or requirements as to the person of the donee. Consequently, it can be anyone - whether a natural person or a legal entity. Moreover, the parties to a donation agreement do not always have to be only individuals. For example, under such an agreement, parents can jointly donate a flat to their child and their partner/partner. It is also important to remember that a donation can be made to members of the immediate family, but also to unrelated persons.
A donation can be used to dispose of some or all of your assets - this applies to both movable and immovable property - while you are still alive. Although it enables them to be acquired free of charge, it sometimes entails specific obligations and costs, as discussed below.
Attention!
Termination of a donation agreement cannot be requested after two years of execution.
At this point, it should also be pointed out that a donation agreement does not end with the donor merely transferring property. If he or she falls into want, the donor has a responsibility to support him or her. This liability is limited to the amount of the existing enrichment. He can discharge his obligation by returning the donation or the amount corresponding to it.
Does a donation made during one's lifetime affect a later inheritance?
Under current legislation, donations made by the testator during his or her lifetime are included in the estate in a statutory succession. Consequently, the value of all donations made must be added to the value of the remaining estate. Only the inheritance thus valued is divided among the heirs.
Where one of the heirs has previously received a donation from the testator, his share of the estate will be reduced accordingly by the value of the donation. This is stated in Article 1042 of the Civil Code, which states that:
"The succession shall be apportioned as follows: the value of the gifts ... to be apportioned shall be added to the estate or to the part of the estate which is to be distributed among the heirs who are obliged to make the apportionment, after which the estate of each of these heirs shall be calculated and thereafter each of them shall be credited with the value of the gift ... to be apportioned against his estate".
Attention!
The donor may stipulate that the donation he or she makes is not to be included in the estate. This can already be written in the donation agreement.
Wills and donations
Once the decision has been made to want to dispose of one's own property, another dilemma often arises. What will be better: Will or donation? Because both of these options can be equally effective ways of transferring assets. As is usually the case in law, everything will of course depend on the given circumstances and the specific facts.
So what are the key differences between a will and a donation?
- The main difference between a will and a donation is obvious and is that donation is effective immediately and Will only after death. We should therefore first answer the question: do we want to pass our estate (or part of it) on to the person now or only when we die?
- Another difference regarding the two ways of transferring property concerns the possibility of revocation. A will can be revoked for any reason, any number of times. It all depends on the will of the testator. In the case of a donation, on the other hand, the matter is more complicated. As I mentioned earlier, a donation can be revoked up to two years after it has been made and, in addition, the revocation must be supported by an appropriate reason. The law indicates the so-called "gross ingratitude", which is very difficult to define in practice. It is for this reason that it is most often necessary to take legal proceedings on the matter.
Wills and donations - summary
To summarise the above, it should be noted that, more often than not, a will will be safer from the property owner's point of view. The moment he or she decides to change his or her mind about the disposition of his or her own assets, he or she can do so virtually an infinite number of times. This is because a will can be revoked for any reason and an unlimited number of times. The testator does not have to justify his decision.
In the case of a donation, however, the case is different. The possibilities to revoke it are very limited - both in terms of time and reason.
