What is a posthumous mandate?

The posthumous mandate is governed by the law of June 23, 2006 on the reform of inheritance and gifts. It is one of the mandates that enable you to anticipate the management of your personal or professional assets after your death. For very specific reasons, the posthumous mandate temporarily dispossesses the heir(s) of their inheritance rights, transferring them to an agent. In this article, we explain the specific terms and conditions of this type of mandate.

Posthumous mandate: definition

As the name suggests, a mandate à effet posthume is an act that empowers another person to deal with your estate following your death. So how does it differ from an executor's mandate?

An executor is a person of trust whom you choose to ensure that your will is properly carried out. He or she can also draw up an inventory of the estate, manage the furniture to be distributed among the heirs, settle debts, invest capital, etc. 

A mandataire à effet posthume, on the other hand, can represent your wishes, provided there are heirs with interests to protect(rationae personae) or an estate to administer(personae materiae). Among the most common cases are minor children, disabled heirs or heirs under guardianship, as well as businesses that need to be managed pending takeover by a successor or resale. These interests must be specified in the mandate.

The 2-year assignment is free of charge. However, there are exceptions: 

• Remuneration may be provided for in the notarial deed of posthumous mandate. 
• The 2-year term can be renewed if the heirs are not yet ready to take over the inherited assets or business. 

Note that, for a posthumous mandate to be valid, it must : 

• It must be received in the form of a notarial deed; 
• That the reason for choosing a posthumous mandate be justified;
• That it be registered in the central file of last wishes. 

In addition, the agent must have accepted it during the principal's lifetime.

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Who can be a posthumous mandatary?

You can appoint any person with full civil capacity as your posthumous representative. This means they must be of full age, not under guardianship or curatorship, and not prohibited from managing (in the case of regulated companies). In addition, the notary handling your estate cannot be a mandatary. 

It could be a family member, a friend, a professional collaborator or even an asset manager such as a notary, banker or lawyer. It can also be a natural or legal person, or even several individuals. In this case, each person has his or her own role defined in the mandate, or can be a holder or deputy.

What are the responsibilities of a mandataire à titre posthume?

The responsibilities of a mandataire à titre posthume vary according to whether or not the heirs have accepted the property. In the first case, the mandatary administers the estate according to the wishes of the principal. If the heirs choose not to accept the estate, the mandatary performs only conservatory or supervisory acts, such as paying funeral expenses, taxes and debts remaining to be settled after your death, selling a property, carrying out the day-to-day business of a company, and so on. 

Its mission also depends on the nature of the assets to be administered:

Complex assets

The mandator may own a large number of assets, or may have assets to grow. If the heir(s) is (are) not yet able to take care of it, the mandatary will do it for them. The mandatary can therefore take care of all administrative aspects, receive payments, rent out and maintain property, have work carried out, or take part in legal proceedings to defend the property in his or her care.

Companies

Running a business requires specific knowledge and know-how. For example, if a parent dies while his or her child is still a minor, or has not yet completed his or her training, the parent may want to wait until the child has all the cards in hand to make the takeover a success. The manager therefore chooses a trusted representative, usually from within the company, such as a financial manager or an associate, to keep the business going.

In any case, the mandatary must report annually to the heirs, since he is acting in their interest.

Please note that if you also have an executor, he or she takes precedence over the mandataire à effet posthume.

At last, the mandate comes to an end: 

• When the two-year statutory period has expired ;
• When the agent decides;
• If he fails to discharge his responsibilities properly ;
• If the heir(s) is (are) capable of managing the property ;
• On the death of the mandatary or heir.

Comparisons with other wealth management anticipation measures 

The posthumous mandate is not the only device that gives you the possibility of providing for the administration of your property after your death. Let's take a brief look at their differences.

Future protection mandate or posthumous mandate?

The mandate for future protection allows you to appoint an agent to administer property or protect people in the event that the mandator is no longer physically or mentally capable of doing so. Unlike a posthumous mandate, it is only valid when the signatory is alive.

Guardian of property or posthumous power of attorney?

If you die and leave behind a minor child, you can appoint a guardian of property to manage the child's assets. However, the decision must be taken by a guardianship judge, and the procedure is more cumbersome. In addition, the guardian cannot administer a company.

The posthumous mandate: a highly flexible solution

In conclusion, a posthumous mandate is useful to give your heirs the time they need to manage their assets themselves. Indeed, the complexity of some assets and the specific nature of some businesses mean that some successors will not be able to take over immediately. However, the choice of attorney and the details provided when drafting the document are essential to protect your heirs.

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