Your Questions

April 20, 2012 6:47 pm

Can I leave a property to friends under French law?

I own a property in France, which has no mortgage or other charge on it. In the event of intestacy, I believe the property would pass to my sister, because I am a single man, with no spouse or civil partner and no children. However, my sister has her own French property and has no need of another one. I have therefore left my French property to two specific friends – both British citizens – in my UK will, as they would derive the most enjoyment from it. Online research suggests that this should be OK, provided the UK will is properly witnessed, but is there anything in French law that might invalidate it? Does the fact that the friends are not yet married or civil partners make any difference?

Robin Paul, partner at law firm Withers, says that, if you were to die without a will, French intestacy rules would apply to your house in France and it would pass equally to your mother and father. If both your mother and father die before you, the property would pass to your sister.

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However, you say that you have left the property to two friends. This is fine – there is no technical problem in including the legacy of your house in your English will. A will in English form will be recognised as valid in France as long as the person who made it is resident or domiciled in England, or is a British national or the will is executed in England.

Your decision is really between incurring additional expense now or after your death. Including the legacy in your English will would slightly increase the delay and expense following your death, as the beneficiaries would have to wait for the will to be probated in England before the necessary legal process could be dealt with in France. Also, the documentation would need to be translated for a French notary.

Your alternative is to have a separate French will just dealing with your French property. This would simplify French legal procedures following your death, but would mean more expense now. It would effectively be a codicil – a document that changes specific provisions – to your existing English will. So, following your death, it would need to be proved here with your English will.

This could be quite cumbersome, as your executors would have to prove it was valid under French law. To avoid this, before drawing up the French will, you could execute a codicil excluding your French property from the English will. This would mean that, when the time comes to apply for probate here, your executors could ignore the French will (or, at the worst, provide the Probate Registry with a copy).

If you do have a separate French will, it is vital to word it in such a way that it does not inadvertently revoke the English will.

Many a foreign will has been started with wording equivalent to “I revoke all former wills . . .” with disastrous consequences for the beneficiaries of the (now-revoked) English will.

In view of the complications involved in having a separate French document, if your English will is relatively straightforward, it is probably better to leave it as it stands – including the legacy of the French property.

Until 2006, if your parents had been left out of your estate, they would have had a right to claim a share of the house on your death under French rules that reserve compulsory shares for certain close relatives.

However, in that year, the reserved share for parents was cancelled. So, in the absence of a spouse or children, you can leave the house to whoever you choose.

There will be French inheritance tax to pay on the house, however – at a rate that depends on the degree of blood relationship between the deceased and the beneficiaries. Non-related beneficiaries – such as friends – must pay a very high rate of tax of 60 per cent, subject to small personal allowances for each beneficiary. Unlike UK IHT, which is charged on the executors, French tax returns – organised by the notary – will have to be completed by the beneficiaries, who will themselves be liable for the French tax.

The tax paid in France will be allowed as a credit against the UK IHT, but if you want the tax to be paid out of the rest of the estate, so your friends receive the property outright free of tax, then you will need to ensure that the appropriate wording is put into your will

Whether your friends are married or civil partners does not make any difference to either the legal procedures or the tax position.

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