May 6, 2011 5:47 pm
Four years ago, I bought a house in France as a secondary residence (I am a UK taxpayer and intend to remain so). I want my children to inherit the house eventually. This should not pose a problem under French law. However, I have been advised that I should write a French will, in addition to my existing UK will. Is this necessary, and does it risk creating complications over probate?
Robin Paul, partner in the estates succession and trusts department at Withers, says that if you are married, then Article 757 of the French Civil Code provides that your wife has the right to either a life interest in the house (in French terms an “usufruct”) or the outright ownership of a one quarter share. If any of the children are yours but not your wife’s, then your wife could only claim the one-quarter share rather than the life interest. Any such right would override the terms of your will, whether it was the English form or French, even though your wife could disclaim her entitlement following your death.
As to whether you need a separate French will, it depends on the terms of your UK will. If this is very simple and leaves everything to your children (and if they are over 18), then you do not need a separate French will. French law will recognise an English form will provided you are a UK national or are domiciled or resident in the UK, or if the will is executed in the UK. However, if the will is more complicated (for instance, if it includes trusts or if the children are under 18), then it is probably better to have a separate French will to reduce bureaucracy.
If everything is covered by the UK will, the French notary dealing with the winding up of your French estate will probably want to wait until the will has been probated in England (so that there can be no question of it being invalid under English law), and will require certified translations of the will and probate.
If there is a French form will the procedure should be simpler and cheaper, especially if the house is in a rural area where the local notary may have a limited appreciation of private international law.
The preparation of a French holographic (handwritten) will is straightforward – the alternative is a notarial will prepared by and executed in front of a French notary – but it is vital to make sure that it revokes the English will only insofar as your French assets are concerned. It is not uncommon for a local will to inadvertently revoke all previous wills, which can have a disastrous effect.
The other possibility is to exclude your French house from your UK will and let it pass to your children under intestacy rules. However, there are moves afoot to “simplify” European succession rules and one of the cons-equences of this may be that France would apply English intestacy rules (as the law of your country of residence) rather than its own as at present. In theory, this should not be a problem. In the absence of a spouse, everything would go to the children whichever law applied – but it could lead to the notary requiring evidence of the English rules, which would increase the costs.
If any of your children is under 18, or may be under 18 at the time of your death, then specialist French advice should be taken as the position will be more complicated.
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