© 2017 by Uzège Transactions et Développement

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How do I deal with inheritance issues?

 

When I die, how can I ensure my French property goes to the person/people I want it to go to?

 

For many, the greatest worry about death is what will happen to their family – and a significant part of this worry concerns who will receive their assets. It may sound obvious, but the most straightforward way of confirming your foreign assets end up in the hands of your chosen beneficiaries is to ensure you have a properly drafted will which is (critically) the product of professional cross-border advice – and not advice provided by a well-meaning friend.

[There are a number of French legal asset structures that can be set up to protect your loved ones including SCIs and matrimonial property regimes - but this section focuses wills.]

 

I thought French law dictated who inherited my property?

 

In France, there are laws which govern how you must leave your property when you die. These are colloquially known as ‘forced heirship’. For example, under French law you cannot simply leave all your assets (including the family home) to your spouse when you die, a set proportion must be inherited by your children.

 

However, since 2015 EU Regulation 650/2012, also known as ‘Brussels IV’ allows forced heirship rules to be bypassed in certain circumstances. In essence (and only after your cross-border specialist has made enquiries to ensure it is appropriate to do so) you can now elect for the laws of your nationality to apply to how you leave your assets. This means if you are British you simply need to have a will in which you formally ‘elect’ the laws of the UK region with which you are most closely connected – be it England and Wales, Scotland or Northern Ireland.

 

What about French succession tax?

 

Although you can choose the law of your nationality to govern how you leave your assets you are not able to opt out of French succession tax, and be warned – there can be substantial indirect tax consequences of making an election – so make sure you take qualified cross-border advice before making an election.

 

Do I need a separate will for France and for my home country?

 

The answer to this question is ‘possibly’. It depends on your individual circumstances including your family make-up, the nature, value and location of your assets, how the assets are owned and who you would like to receive them. Although for some clients the correct course of action is to draft one will to cover your worldwide assets, for most clients, separate wills to cover assets in each jurisdiction in which the assets are situated are more appropriate.

 

Do I need to get my will drafted by a French lawyer for it to be valid?

 

No. Your will does not need to be drafted by a French lawyer for it to be valid – and contrary to what you may have been told, English wills (in most circumstances) have been formally valid in France since 1967.

 

Does my French will need to be registered with a French notaire?

 

No. There are three options in France. A holograph will (handwritten will) is valid in France (under certain circumstances) and so is a formal notarial will. As described above however, properly executed non-French wills are also formally valid.

 

I am British; will Brexit affect my will?

 

Brexit will make absolutely no difference in terms of the devolution of the assets (who gets what when you die) of British nationals whether the UK is in the EU or out of the EU and the reason for this is that the UK opted out of EU Regulation and so the UK is already treated as a state outside the EU for succession purposes.

 

The only difference a Brexit would make would be that the UK could not, in the future, opt-into EU Regulation and as there is currently no sign of that happening, the point is merely academic. To illustrate: nationals of countries outside of the EU, for example Australia, can make an election in their wills for Australian law to apply to their French assets. This means that you can choose to avoid French forced heirship rules, and leave your property to whomever you like if you make a will and ensure that an appropriate election is made.

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