What is the advantage of drawing up company articles of association by notarial deed?
The notarial deed provides an ideal, secure support.
The notary's intervention is important when the heirs are involved in setting up the company. In fact, a partnership formed without fraud between the deceased and one of his or her heirs is not subject to the payment of a partnership tax when the conditions have been set out in a notarial deed (C. civ., art 854). By opting for a notarial deed, presumptive heirs will not have to endure this simple presumption of fraud, which itself presumes an indirect gift and which, moreover, is reportable.
The use of a notarial deed is strongly recommended when setting up a company between spouses. Even if they only use community property to contribute to a company or to acquire shares, two spouses, alone or with others, can be partners in the same company and participate together or not in the management of the company.
The notary's involvement will ensure that the parties are able to commit themselves, particularly in the case of contributions of joint assets. This is particularly important in the case of minors, depending on the type of company.
Approval clauses in the event of a transfer of shares will be analyzed in particular, especially in the event of death. The notary, who is perfectly familiar with the family context, will be specifically advised to assess the scope of these clauses.
The governance of the company will be examined on a case-by-case basis, particularly in the case of dismemberment of shares. For example, in a non-trading company, it may even be possible to appoint a managing director to succeed the deceased managing director.
Authenticated articles of association will have probative force and date certain.
The notarial deed offers undeniable material advantages: the original copy of the agreement is kept for at least 75 years. The partners sign only one copy. Business secrecy is guaranteed.