Observation: a need for a patrimonial organization not currently satisfied:
Framing the management of the properties that he plans to transmit to his descendants is a wish often expressed by the future with variable motives:
- the wealth is complex (certain transfers of family businesses),
- it is important to ensure the durability of a group of properties that have been put together for a particular purpose (successions of collectors or artists, management of historic castles that have kept their furniture),
- we are in the presence of heirs who do not have the necessary competence for the management of inheritance and who must be assisted or even protected against their own prodigality.
It is frequently stated that the succession reform implemented by the law of 23 June 2006 (Law No. 2006-728) would have provided individuals with effective tools for organizing such estate planning.
The following are cited:
- the creation of the posthumous mandate ( civ., sections 812 to 812-7 );
- the liberalization of gradual liberalities ( civ, articles 1048 to 1056 ) and residual liberties ( civil code, articles 1057 to 1061 )
Although some progress has been made since 2006, the tools available to the deceased who wish to organize the management of the estate on behalf of his heirs are still insufficient and fragile in many cases:
- The posthumous mandator : must be justified by a serious and legitimate interest (C. civ 812-1-1) which interest gives more and more often to litigation (Cass civ 1, June 10, 2015, n ° 14- 10.377 and 14-12.553, Delarue), and has a very limited duration (at most 2 years in principle, exceptionally 5) much too small compared to the organizational needs expressed by the future applicants. adapted to manage a relatively short transition period after death, but which is not intended to organize the situation in the long term.
In addition, the mandatary may only perform conservatory or administrative acts.
More serious, the device is based on the fiction of a mandate that does not remove the heirs the right to intervene themselves and sell the property … thus dropping the mandate (Cass civ 1, May 12, 2010, Bull civ I, No. 117). The latter becomes more effective only by means of additional engineering that may consist of the de cujus to house during his lifetime the assets in a SAS whose statutes include an inalienability clause and bring the mandate to effect posthumously on the actions of society, but this complicates the scheme and illustrates the intrinsic fragility of such a mandate used alone.
- Gradual and residual donations have only been very successful in practice and seem to have been implemented only in rare cases. They are sometimes presented as having a purpose close to the trust. We are not convinced because the primary purpose of this device is to ensure a double successive transmission by organizing the “return” of the property upon the death of the first beneficiary to the benefit of the second beneficiary. However, its scheme does not allow the first beneficiary to manage the property while it holds it on behalf of the second beneficiary, or to issue income to the latter until the death of the institute.
- Civil society: in the absence of suitable succession mechanisms, the future owner often resorts to an older engineering solution consisting in creating a civil society placed under the control of a manager of an irrevocable trust, and with “tailor-made” status, which serves as a management vehicle for the assets under consideration. The fact that this traditional solution is still preferred today to the new tools resulting from the 2006 reform demonstrates the relative inefficiency of these. But, it is itself sometimes difficult to implement insofar as it is difficult with regard to the social interest to provide in the statutes the conditions under which the manager will be authorized to issue capital or income funds. descendants become associated according to their personal needs.
On the other hand, management trust appears as an alternative technique that is more efficient and better adapted to such objectives: it makes it possible to isolate the assets in a patrimony of assignment, sheltered from the creditors, and by entrusting them to the management a trustee, a qualified and independent professional, who will have sufficient and flexible powers, determined from the contract of trust or ad hoc on a case-by-case basis, to be able to manage the long-term assets with a view to the satisfaction of personal needs beneficiaries, and the preservation of the heritage, without having to respect a social interest distinct from the interests of the constituents of the trust.
The current civil and tax prohibition of the gift-giving trust does not remove any interest in the trust in a context of transmission. In many cases, it can be used in addition to the liberality or succession and allows to ensure the locking desired by the settlor or to optimize the management of undivided or dismembered assets.