DRC Succession Process:Overview & Practical Considerations
Updated: Jul 7, 2021
When a loved one passes away, family members scramble to figure out how to handle any assets left behind, i.e. the decedent’s estate. Under Congolese law, this important question, known as succession, is governed by the Family Code.
Succession is the legal mechanism by which the estate of the decedent is distributed among his or her heirs.
The Congolese Family Code seeks to unify people and family rights as intended and organized by the Government with the various ancestral traditions existing in the DRC. The Congolese legislator intended to protect the family unit and tried to organize things in such a way as to ensure the unity and stability of this micro community. The Government realized that an efficient protection of the Congolese family meant to renounce outdated legal and traditional rules, unsuited to the requirements, realities and values of the modern Congolese society.
Under the Congolese Family Code, the distribution of the decedent’s estate can be done either in accordance with his or her Will - testamentary succession - or according to the provisions of the Family Code if there is no Will - intestate succession.
This article will focus only on issues relating to intestate succession.
I. General considerations
Who are the legal heirs?
When it comes to succession, the Congolese legislator has deemed it necessary to renounce somewhat some ancestral traditions. The Family Code provides for 3 categories of heirs:
The decedent’s children, without any distinction or hierarchy between those born in wedlock, out of wedlock - but recognized by the deceased while still alive - or those adopted, if any. All children form a single category of heirs. They are entitled to 75% of the decedent’s estate, which should be shared equally.
The surviving spouse, the parents, and the siblings of the decedent. Unlike the heirs of the 1st category, this 2nd category of heirs is subdivided into 3 separate sub-groups, which are treated a bit differently. The 3 sub-groups are entitled to 25% of the decedent’s estate, i.e. 8.3% per sub-group, or 12.5% if one of the 3 sub-groups is not represented.
Maternal and paternal uncles and aunts, regardless of the patrilineal or matrilineal traditional rules. However, this 3rd category of heirs is entitled to receive a share of the decedent’s estate only if heirs of 1st or 2nd category are not represented.
What are the surviving spouse’s rights?
The inheritance procedure exists downstream of the issue of the dissolution of marriage, which entails the liquidation of the marital estate. It should not infringe the rights of the surviving spouse as recognized and organized by the Family Code.
The death of a married person automatically results in the dissolution of his or her marriage, without the need for any formality. Therefore, it is necessary, prior to the division of the decedent’s estate, to settle the liquidation of the marital estate, in order to figure out which marital properties are part of the decedent’s estate to which his or her heirs are entitled.
The Family Code also recognizes the right of the surviving spouse to remain in and enjoy the family dwelling he or she occupied with the decedent before his or her death, this is known as usufruct. The surviving spouse enjoys this right until his or her death, or if he or she remarries and no heirs of the 1st or 2nd category are represented.
II. Practical considerations on the Process for opening a Succession
The Family Code does not provide a great deal of practical details on administrative and court processes to undertake in connection with the opening of a succession. It simply provides that the decedent’s succession ‘‘is open at the place where he or she had, at the time of his or her death, his or her domicile or principal residence’’.
The liquidator is the person who is in charge of distributing the decedents’ estate among his or her heirs. He is also required to collect any money owed due to the decedent and pay debts of the decedent’s estate, if any. The process is known as liquidating or settling the succession.
The Family Code lists some of the tasks that the liquidator must undertake. The liquidator is an agent who is expected to honestly carry out his or her mission. As an agent, he or she is liable not only for fraud, but also for any improper action or omission in the performance of his or her mission. In accordance with the provisions of the Congolese code of obligations, the liquidator - like any other agent - must communicate with and render accounts to his or her co-heirs.
When the decedent dies without a Will, the Family Code provides that the heirs of the 1st category – i.e. the children - appoint one of them as liquidator. However, the Family Code is silent on the method of designation. In the silence of the law, families generally resort to ancestral traditions and / or to their respective family tradition to proceed with the appointment of the liquidator. It is not uncommon for them to appoint 2 co-liquidators.
In matters of inheritance, the Family Code allude to the family council, which is resorted to in certain circumstances mainly whenever there is a dispute to resolve.
The Family Code does not provide any details on the composition of the family council. However, it is reasonable to assume that it is at least made up of the decedent’s children - in charge of appointing the liquidator of the estate - and the surviving spouse.
Typically, it is this instance that calls a meeting, sometime after the funeral, to discuss the dissolution of the marriage and inheritance issues. It is generally on this occasion that the liquidator is appointed.
Administrative and court processes to carry out in connection with the opening of a succession
In practice, the opening of the succession begins with a meeting of the family council, which discussions are recorded in meeting Minutes. The Minutes must then be executed by the President of the borough where the succession was opened. They are subsequently submitted, after being legalized, to the competent court in order to confirm the appointment of the liquidator or liquidators chosen during the meeting of the family council.
The 2016 amendments to the Congolese Family Code failed to solved all of its shortcomings. The Family Code does not go far enough in protecting the surviving spouse - particularly the wife who is often discriminated against by some ancestral traditions - and minor children. They continue to suffer the abuses of some outdated traditions. For instance, the 2016 reform failed to clearly restate and better organize the priority of the liquidation process of the marital estate – crucial to the protection of the rights of the surviving spouse – over the liquidation of the decedent’s estate. As a result, the surviving spouse finds herself - all too often - hostage to lengthy heirs’ dispute over the appointment of the liquidator of the decedent’s estate.Furthermore, no provisional measures have been put in place to prevent an interruption of child support of minor children while the succession process is ongoing. Families need to be cooperative if they want a speedy settlement of the decedent’s estate. It is crucial that they secure the services of a dynamic, diligent and extremely competent lawyer.