Help wanted with French Wills

Hi all


I am after some help regarding french wills. We have property in France and the UK and have a UK will. Do we need a separate will to cover our french property or can we just include those assets in with the UK will?


We have no children so want to make sure the right people get the inheritance rather than either of the governments!


Thanks.

Just an extra point - My understanding is that assets left to a spouse are not subject to any Succession Tax in France. However, as each son or daughter currently gets a Succession Tax-free allowance of €100,000 per inheritance, it sounds as if it is worth organizing the post-2015 wills to give each child a chunk of the family property worth €100,000 on the first death. Again, this needs to be checked out with a specialist Financial Advisor.

I confirm a French Will does not necessarily need being handwritten. Where a French Will is drawn up in the form of a typed document however, the Will must be issued by a notaire and is to be executed and legalised/notarised in the said notaire's presence.

Where a Will is handwitten, to ensure the Will is legally effective under a formal angle, the testator must personally hand-write his or her Will, indicate the date and sign the document.

www.french-wills.com

Ian,

A French Will does not have to be handwritten. It's just that if you want a will that is legal without any witnesses, it must be handwritten. As a non-lawyer might not take all the possible circumstances into account, many people think that the notaire's fee is worth the money, especially as it also avoids disputes as to whether a handwritten will might be a forgery.

As for your step-son, as he's not your child, even the current French law would not give him the right to any of your assets, but he would have an automatic claim on your wife's assets, which might include half of a jointly-owned property, as the law stands. The change coming next year should allow her to opt to be treated under UK inheritance law and leave her assets to whom she wishes. However, leaving French assets to someone other than a son or daughter (or a parent, though that's not common) will be hit by 55 or 60% Succession Tax. (There is a very small tax-free allowance, but it's next to nothing.) The new law is supposed to allow you to ditch the strict rules of French Inheritance Law, but doesn't change anything so far as French Succession Tax is concerned.

For insomniacs, the UK-France Double Taxation Treaty that relates to Succession/Inheritance Tax makes interesting reading. This is not the Treaty that was changed in the fairly recent past, but dates back to the 1960s, I think. My amateur interpretation says that you can alleviate French Succession Tax that might be levied on UK-resident inheritors by shifting investments in shares & the like to UK-based companies. Your estate would have to be probated in the UK, but would receive the full UK tax-free allowance. Anyone contemplating something like this should check it out with the specialist financial advisors, several of whom advertise quite widely to the expat community.

My wife died suddenly last December. While we both had wills in place the planning wasn’t all it could have been because we thought we’d still have time to fine tune things. She was only 53 so everything was geared to me going first. We have a home and investments here and a home in Ireland (which due to the new property bubble is “worth” a lot)and one daughter who, of course, is entitled to her share. Not a problem as she’ll get everything eventually :slight_smile: but because of timing the tax implications for her (i.e. us) could have been horrible. With the aid of our family solicitor in Ireland and our very helpful and sympathetic Notaire here I’m probably going to get things sorted out in an acceptable manner in the next month or so. I cannot overly emphasise the importance of getting good professional advice on succession planning. It’s tricky at the best of times but dealing with multiple jurisdictions does not double the complexity, it quadruples it IMO. My daughter and I have been lucky because our advisors “forced” my wife and I to take out Assurance vies etc. etc. As soon as I have this sorted I will be getting professional advice on how to safeguard our few bob for our daughter when my time comes.

Yes, Sandy, that was always our understanding, and we bought our first home here in 2002. Several weeks ago, however, there was a discussion that made me seek another opinion. The first attorney in Paris told me that even with the tontine, should my husband die first, that his children's reserved heirship of the tontine property would become a debt of the estate and that if I wanted to sell it, I would have to pay them 75% of 50%. I cannot tell you how upset we were. We had actually accepted the fact that we were going to sell our home and move back to Scotland as my husband is adamant that his children should not get anything and that I should be able to sell the property upon his death and do as I wish.

See Useful Links - Legàl. There are three links on French inheritance laws. The first sentence of the first link states unequivocally that unmovable property comes under French law whatever the nationaity of the deceased or his/her place of residence at time of death. How this will be affected by the new EU regulation mentioned by Brian is not clear.

To confirm, a tontine (if exactly properly) CAN disinherit the first deceased's children. It's a technicality that, upon first death, the survivor is deemed to have always owned the property entirely from the start and that the deceased never had a share of it. Therefore, it passes absolutely to the survivor. Interestingly, however, if you're not married then the government will apply tax to the half share that you receive, saying it's a gift, even though under a tontine it was always yours to start with.

But a tontine is watertight. I've seen it tried and challenged a few times, and it's always stood.

That is absolutely correct, but of course the reserved rights do apply on the second death and with a tontine clause you cannot be sure of their effect if there are two different families, as the whole asset will be in the second estate.

As from 2015 it will be possible for UK nationals to elect that their own legal system applies and this should make things easier for people with two families.

The 25% for the spouse was my understanding as well. I in fact have three children and she has one from a previous marriage and there is no way that I want to see him receive anything. I will have to sort this out sooner rather than later.

I don't know about wills, but I believe that if you have two children of your own, they will inherit 75% of your estate if you are a resident of France. We were told that a spouse can only be left 25% of the estate, and I think that this is true. A notaire or avocat will be able to answer all questions.

Thank you for that Harriet. I have no French will and only an old UK will, which is somewhat out of date post divorce and the whole thing needs sorting out. Tontine is not an issue yet as nothing sorted. I own the whole property and there is nothing at all in my wife's name.

The Notaire spoke no English and my French is bar and restaurant status only and this helped the vendor and the agent pull the wool over our eyes about the state of the property and the cost of repairs etc. Some friends have told us there is an English speaking Notaire in town now and I might have to pay her a visit to discuss this further.

If I write out all that I want to happen, on the computer and printer that is, will they follow all that is there as long as it complies with French Law. I read somewhere ages ago that a French Will had to be written in actual handwritting. Do you know if this is so?

Ian, I understand completely your problem. We have the same problem with my husband's children from a former marriage and he feels as you do. Our home is held in tontine. There was a thread on this board about two months ago where members insisted that reserved heirship still applied to tontined property. We immediately telephoned our notaire who said our tontine was good, and I should stay off the internet for legal info. I nagged my hubby because posters sounded so certain that we went to an avocat and after spending a few hundred euros more for a highly specialized opinion have confirmed that reserved heirship simply does not apply to tontined property between a husband and wife providing that the tontine clause is properly drafted and meets the criteria of the tontine, i.e. no great age difference between the two spouses, not in ill health at the time of the conveyance. I would suggest that to properly understand everything that you see your notaire or avocat. It is worth the money. If your property is not held in tontine, then it is a totally different playing field.

I still have to sort this out as time is getting on. Even though other posters have said they are not bothered what happens, as they will be dead, the thought that either the French or UK so-called governments will get their grubby little hands on even the smallest part of my hard earned cash make me squirm.

Something that has come up that I spotted in the posts is with respect to the inheritors being the children of previous marriages. While I have no problem with this in regard to my own children, from a former marriage, I would be seriously concerned if I thought my step-son who has nothing whatsoever to do with his mother, his choice, was to even get a scent of this, never mind actually getting anything at all on my demise.

Comments on this scenario most welcome. This could be the final nail in the coffin, so to speak, given the subject, of actually continuing to live in France.

If you are French resident than you need to comply with French law (currently - things are due to change next year, I believe)

We went to our notaire a few weeks ago to do just this, We don't have kids either so it's fairly straight forward. If either of us dies the other inherits it all, tax free. If we both die it will be split up amongst siblings, nephews and nieces etc. We too aren't bothered about inheritance taxes because a) we will be dead and b) we don't own enough to be that worried about it.
The cost of our will was either 160 or 180 Euro (I can't remember exactly!) and is legally binding under French law.

The second method is for you to write down, sign and date a document stating exactly what you want to happen to your worldly goods when you 'fall off the perch' (I think that's the legal term). Our notaire gave us both options - but, as she stated, with option 2 there are no costs up front but when you die an advocat will have to take your piece of paper and present it before a judge. Her advice was that it costs more then 180 euro for said advocat to 'open the case' even before he starts ramping up the charges by presenting the case to the judge and trying to decipher your wishes, which won't be written in legalese.

Having said that, option 2 is better than nothing at all.

My advice is to pop down to your local friendly notaire.

You might want to find out how much the inheritance tax will amount to as it could be prohibitive, meaning that the government, or rather the council would end up with your property, will or no will!

Ask your notaire - you should get some free advice

An English will made by a UK national can, in principle, cover his/her world wide assets or be limited to only those in the UK, or to worldwide assets excluding e.g. French assets.

The English will would need to be re-proved in France after death - i.e a French court order as well as the English grant of probate. While not very complex that is more difficult than having a French will for French assets.

Immovable property will always be subject to the law of the country where it is situated, so the English will would take effect subject to the automatic rights of inheritance of children, spouses etc that might be relevant in France. With no children that might be academic.

The country where the will is made will have no impact on the amount of inheritance taxes which will be determined by a combination of tests of residence, domicile and the effect of the France/UK double tax treaty. In principle the long term residence will determine the primary taxing system which will apply to world wide assets, but immoveable property will also be taxable in the country where it is located. For a UK domiciled person the French tax would be offset against the UK tax bill and vice versa. The exact effect depends on many details specific to the particular individual.

On your question either an English or a French will can validly ensure that assets (net of tax) do not pass to either government

http://french-wills.com/The EU regulati

Whilst the applicable law relating to succession matters might be affected both by the "domicile" (a complex legal concept under French Law) of the deceased as well as by the country in which assets are found at the date of death, French Law will automatically be applicable to real property (houses, land etc) situated on French territory.

It may therefore be appropriate to envisage a separate will covering those assets which are held on French territory and it would be advisable to arrange for this will to be lodged with the French National Registry of Last Wills and Testaments in order to avoid difficulty in finding it were the person concerned to be living outside France at the moment of his or her death.

It should also be noted that French Inheritance law is notoriously complicated and despite recent changes remains based on fundamentally different principles from those under common-law systems.

Two areas of French Law worthy of particular note are

- first, the fact that it is not possible to disinherit one's children and that all offspring, from whatever current/previous marriage or relationship, must be treated equally in the succession

- second, France has adopted the system of pre-nuptial settlements (in French 'regimes matrimoniaux' or 'contrats de mariage') which determine the ownership of goods, chattels and real property as between the spouses during the course of, as well as after, the marriage.

Inter-vivos gifts and tax issues should also be carefully considered when dealing with the Estate planning of one's French assets and specialist advice should be sought in these respects.

EU Legislation

Recently adopted EU legislation should make it easier to bypass the rules outlined above.

The basic principle is that an EU national living in another member state will be able to choose which of the two countries’ legislation determines the distribution of their estate, by stating this clearly in a will. For example, for British nationals resident in France they will be able to stipulate that they wish to use English or Scottish Law rather than French Law, thereby circumventing France’s strict rules regarding “reserved heirship”.

However, it is our understanding that, in order for the French Government to ratify this new regulation, the constitution would have to be changed, since the automatic right of children to inherit is an element of “public order”. Also, it is expected that France will seek to apply the regulation as restrictively as possible.

In any case, the regulation will not come into force until three years after it has been adopted by the European Council (ie 2015).

The regulation applies only to rules on who can inherit, but does not cover taxation. This means that should you decide to leave assets to, for example, step-children, French inheritance tax would still be levied at 60%. Therefore, whilst this is good news on the face of it, it is not necessarily a panacea and appropriate advice and planning will still be vital.

Also, the regulations will not be directly applicable in the UK, as a result of its right to opt out.