PTo prevent billions of euros from sleeping on life insurance contracts whose beneficiary clause bears, instead of surnames and first names, the sole mention “my heirs”, the Eckert law of June 13, 2014 imposed on insurers to identify the latter, as soon as they are informed of the subscriber’s death.
To achieve this, insurers have, in 2015, made a commitment to use, if necessary, genealogists or investigators, whose costs they bear, since they do not have the right to deduct fees from the beneficiaries. Axa thus indicates that it has entrusted them “a few hundred files in 2021”, but have “limited searches to the sixth degree of kinship”.
Under these conditions, is it legitimate for a genealogist ” double “ an insurer, to find the beneficiary of life insurance, and puncture his capital? ” No “answers the former deputy behind the law, Christian Eckert, asked by The world, about the next case. On October 13, 2015, Mr.me X, 73, receives a call from the Guénifey genealogical office.
Drawdown on capital
Her interlocutor, mandated by a notary, informs her that she is the co-heiress of a deceased person, whose name he will reveal to her if she signs a “succession disclosure contract”. This contract authorizes him to be remunerated by “a percentage of net assets” of the estate” including (…) sums received under life insurance contracts..
Mme X negotiates a discount on the progressive scale percentages. But it does not dispute the clause which integrates life insurance into the base for the calculation of fees. A few months later, she learns that the deceased, a fourth cousin, was a tenant of an HLM, where his contract was found. The net assets of his estate represent only… 21,413 euros. But the life insurance he had taken out with AFER for the benefit of ” (his) heirs »has a capital of 593,217 euros.
The genealogist adds these sums (614,630 euros) and deducts for his fees 13.4% of the total, or 82,755 euros. Mme X, who then considers the content of his contract to be abusive, takes legal action to obtain its cancellation.
It recalls that life insurance is not part of inheritance (article L. 132-12 of the insurance code). It was the “Godart” law of July 13, 1930 which excluded from the estate: the heirs, even reserved, cannot touch them if their name does not appear on the beneficiary clause, and it is the insurers who must search for the beneficiaries, without charging a fee (article L. 132 -5 of the insurance code).
Lost sentence: the Nîmes Court of Appeal judges, on June 2, 2022, that “even if the Eckert law required insurance companies to carry out in-depth research on the beneficiaries of life insurance, it is not certain, with regard to the degree of kinship (fourth), that the company AFER (would be) managed to identify M.me X ». And to add: “It is therefore possible, indeed very probable, that Mr.me X (would be) remained ignorant of her rights but also of her status as a life insurance beneficiary. »
Decision that Mr. Eckert finds “shocking”. While admitting that it would be appropriate to ” to support “ the law, supposed to close the problem of dormant financial assets, by specifying, for example, the degrees of kinship up to which insurers must imperatively carry out their research.
How to calculate the “progressive scale”
The genealogist’s succession disclosure contract provides that the cumulative percentage applicable to the net assets is:
- 20% excluding tax: from 1 to 50,000 euros;
- 15% excluding VAT: from 50,001 to 100,000 euros;
- 10% excluding VAT: above 100,000 euros.
The net assets being 614,630 euros, the genealogist takes: (20% of 50,000 euros = ) 10,000 euros + (15% of 50,000 euros = ) 7,500 euros + (10% of 514,630 euros = ) 51 463 euros, i.e. a total of 68,963 euros, excluding taxes, to which he applies 20% VAT, which gives 82,755 euros including tax.