Making wills in France.
Anyone owning property that is governed by French succession law should make a French will. If you die domiciled in England, French succession law will only apply to your land/buildings or other ‘realty’ in France. Your furniture or bank accounts and other ‘movable’ property in France or elsewhere in the world is governed by English law. Your French will should therefore only make reference to your French realty, and exclude any movable property you own in France, which should be dealt with in your English will.
If you die domiciled in France, French succession law will not only apply to your French realty, but also to your ‘movable’ property in France and elsewhere in the world. The only property to escape French succession law if you die domiciled in France is your English realty and usually (but not always) any other realty you own outside France.
Many French lawyers, particularly those in the high street, have treated drafting French wills as a ‘loss leader’. Something to foster goodwill, perhaps ‘bolted on’ to a French conveyancing package at a little or no extra cost. But, in treating the making of a French will as an afterthought, the profession is sending out the wrong message. It fosters the attitude that French wills are simple and that people might just as well go for a ‘home-made’ French will instead.
By oversimplifying matters, home-made French will forms often don’t fit the bill. Not that this prevent people from using them. Important matters are often ignored in home-made forms. Nil-rate band legacies to reduce or eliminate French inheritance tax on the death of the surviving spouse, default provisions to cater for beneficiaries predeceasing the testator – these are just two areas a French lawyer can advise on. There are many more horrors to ensure that the DIY will keeps the French lawyers’ coffers full.
Unfortunately, in my experience, the consequences of dying intestate in France (i.e. without a will that respects the rules of French succession law) can otherwise severely prejudice your next of kin and provide plenty of work to keep French probate lawyers in business.
In one case, a client died without a French will, leaving a former wife and a second wife with minor children from each marriage. It took more than seven years, four firms of lawyers acting for the various parties and combined legal fees of something like £300,000 to resolve matters to nobody’s particular satisfaction. Not to mention a French inheritance tax bill several hundred thousand pounds higher than it might have been had the deceased had made a carefully crafted French will. At least he is not around to see the chaos he had created.
I have seen several such tales – distant or disliked relatives inheriting French property instead of long-term partners; massively higher French inheritance tax bills; long and expensive French court cases; disillusioned, sometimes shocked widows and children – all scenarios that have graced the filing cabinets of French lawyers because of the simple failure to make a French will.
You only need to own a small apartment in France these days and the tax man (in France and the UK) is rubbing his hands behind your back, just waiting for the tax to roll in when you die. Two or three thousand pounds on a family holiday – fine, but the prospect of spending considerably less on a French lawyer so as to save French inheritance tax and deal with family succession planning – no way.
The legal profession has gone some way to creating this state of affairs by offering the writing of wills and succession planning as an afterthought service. But hopefully, with more and more people being caught by French inheritance tax and second and third families becoming more commonplace, things will change. If not, it won’t be the lawyers who will suffer – all those problems over intestacies or disputes over poorly drafted wills will keep them in business long after the person is dead and buried.
The two main problems of French succession law are that you cannot always: (a) automatically leave property which is governed by French succession law (‘your French estate’) to your surviving spouse or other chosen heir; or (b) prevent your children and certain other individuals from inheriting a certain proportion of your French estate. The term ‘children’ means any descent by an existing or previous marriage or other relationship. If a child predeceases you, ‘children’ also includes his or her issue (your grandchildren), regardless of their age. The problem with young beneficiaries is that it is usually impossible to sell or otherwise dispose of your French estate until they are all 18 years old.
If you have already made a will it will be invalid if it deprives any of your children of their rights under French succession law.
If you do not make a valid will your children take full ownership of your French estate, and your spouse or other chosen beneficiary get nothing. If you leave no children when you die, full ownership is taken (in descending order) by your surviving parents, brothers and sisters, nephews and nieces, grandparents, uncles and aunts, and cousins. If you leave no relatives the French State takes all of your French estate.
Although a French will is not strictly necessary (if your English or other non-French will complies with the rules of French succession law, which most do not), the formalities involved when administering a French estate under a non-French will can be complex and thus expensive to process. For example, the foreign will must be translated into French and certified by a French court official, notarised, and its authority proven by lengthy French affidavits of law.
Don’t let your English will govern your French estate. To simplify the process, and reduce the cost of winding up your French estate, it is usually preferable, if you are domiciled in England, to: (a) make an English will that excludes all reference to your French ‘realty’, and (b) make a French will that only deals with your French realty and excludes any other property you own in France.
If you die domiciled in France, French succession law will not only apply to your French realty, but also to your French ‘movables’ and to your movables in any other country. In this case you should make a French will that deals with all your French and other worldwide property except any realty you may own in England or elsewhere outside of France.
Every client has different tax and succession law requirements, and in some cases making a French will is not enough. Sometimes an alternative or additional solution may be required. For example, it may be appropriate to form a company to own your French realty. If you die domiciled outside of France, this is one way to avoid the rules of French succession law. However, the greater the complexity of your needs, the greater the costs and the chance that something will go wrong. Other less sophisticated but effective methods may be appropriate, even if they achieve more limited objectives at less overall cost and maintenance.
Whatever your personal circumstances, it is vital that you get proper independent legal advice before you enter into a legally binding commitment to buy property in France. Afterwards may be too late.