A power of attorney for inheritance is not drafted like a standard real estate sales power of attorney. The scope of the acts covered, the quality of the agent, and the mandatory mentions are subject to specific constraints that we detail here.
GDPR Clause and Authorization for the Deceased’s Sensitive Data
Notarial offices increasingly require that the inheritance power of attorney explicitly mentions the agent’s authorization to consult documents containing sensitive data: the deceased’s bank statements, life insurance contracts, tax files. Without this clause, the notary may refuse to provide certain documents to the agent, which can block the settlement of the inheritance.
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We recommend drafting this authorization as a separate paragraph in the body of the power of attorney, listing the categories of documents concerned. A formulation that is too vague (“all useful documents”) will be rejected by some offices that strictly apply the GDPR in their daily practice.
This requirement is recent and absent from most templates available online. An up-to-date power of attorney template for notarial inheritance includes this mention, which avoids an additional back-and-forth with the office.
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Special or General Power of Attorney: What Scope for an Inheritance
Always prefer the special power of attorney. Notaries recommend it to limit the agent’s power to a specific act: acceptance of the inheritance, signing a sharing deed, sale of a specific asset, collection of funds from an identified account.
The general power of attorney, which grants the agent the ability to perform all administrative acts, generates increasing disputes among heirs. A co-heir mandated by a general power of attorney can, in theory, make property decisions not anticipated by the principal. Disputes often revolve around the abusive use of this type of power.
Mentions to Include in a Special Inheritance Power of Attorney
- The full identity of the principal and the agent (civil status, address, possible relationship to the deceased)
- The precise designation of the inheritance concerned (name of the deceased, date and place of death, file reference with the notary)
- The exhaustive list of authorized acts: simple acceptance, acceptance up to the net assets, signing the inheritance declaration, signing the sharing deed
- The validity period of the power of attorney, with an explicit expiration date
- The GDPR authorization clause mentioned above
Omitting the reference of the notarial file or the precise designation of the inheritance renders the power of attorney practically unusable, even if it remains legally valid.
Remote Notarized Power of Attorney: Legal Framework Since 2021
Remote appearance by videoconference has been established by Order No. 2020-1422 of November 20, 2020 and Decree No. 2020-1423 of the same day. The system, initially created in a health context, is now part of common practice.
For a remote power of attorney to be valid, the notary must use a platform certified by the High Council of Notaries. The principal connects via videoconference, verifies their identity, and the notary establishes the authentic act with qualified electronic signature.
This procedure is particularly suitable for heirs residing abroad or in another region. It produces an authentic act with the same legal value as a power of attorney signed in person at the office.
Limitations of Remote Power of Attorney
The notary retains the right to refuse remote appearance if they believe the identity verification conditions are not met. Heirs under guardianship or curatorship cannot use this system without prior intervention from the guardianship judge.
Authentic Act or Private Document: Consequences on Validity
In matters of inheritance, an authentic act is required for any power of attorney concerning the signing of a sharing deed or a real estate sale resulting from the inheritance. A private document, even with signature legalization at the town hall, is not sufficient for these operations.
The private document remains usable for preparatory steps: retrieving documents from the office, consulting the file, requesting information from the deceased’s banks. The distinction is fundamental as it determines the cost and formality of the power of attorney.
When the Private Document Suffices
- Retrieving copies of already signed notarial acts
- Submitting additional documents to the inheritance file
- Consulting the draft inheritance declaration before signing
For the signing of the inheritance declaration itself, practices vary from one office to another. Some notaries accept a private document with a legalized signature, while others require an authentic act. We recommend checking directly with the office handling the file before having the power of attorney established.
Revocation and Expiration of the Inheritance Power of Attorney
The principal can revoke the power of attorney at any time by sending a registered letter to the agent and the notary in charge of the inheritance. The revocation takes effect upon receipt by the notary, who can no longer accept any act signed by the agent.
In the absence of an expiration date in the text of the power of attorney, it remains valid until the complete settlement of the inheritance is achieved. Setting a validity period (six months, one year) protects the principal against late or unforeseen use of the granted power. The notary may require a renewed power of attorney if the settlement of the inheritance extends over several years, which frequently occurs in cases involving real estate or disagreements among heirs.
The signing of an act by an agent after the revocation of the power of attorney results in the nullity of the act. The principal who forgets to notify the revocation to the notary bears the consequences if the agent acts in good faith in the meantime.