French will

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SteveB
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French will

Post by SteveB » Wed 17 May 2017 19:11

When I changed my will recently in the UK I was advised by the solicitor to get a separate French will to cover my French house. However I gather that the default in France is that your property goes to your children, which is what I was planning anyway. In view of this, I wondered whether I really need to shell out for notaire's fees or whether it's safe just to let the law take its course.

Has anyone any relevant experience or knowledge?

Many thanks

Steve

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Re: French will

Post by Sus » Wed 17 May 2017 21:04

SteveB wrote:When I changed my will recently in the UK I was advised by the solicitor to get a separate French will to cover my French house. However I gather that the default in France is that your property goes to your children, which is what I was planning anyway. In view of this, I wondered whether I really need to shell out for notaire's fees or whether it's safe just to let the law take its course.

Has anyone any relevant experience or knowledge?

Many thanks

Steve
I think it depends on your residency status. If you are resident in the UK, the French inheritance law only applies to your belongings in France and it is then passed to your spouse and children.

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Post by SteveB » Thu 18 May 2017 01:05

Yes, that's my situation- I was only thinking in terms of my property in France.

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Post by martyn94 » Thu 18 May 2017 13:35

SteveB wrote:Yes, that's my situation- I was only thinking in terms of my property in France.
I believe it is indeed easier and cheaper to have a separate French will for French property, even if you are content with the default. If you have an English will, it will apply here, but only to the extent that it is compatible with French inheritance law. To establish how far that this is or isn't so (and if it isn't, what follows) would involve lots of official translations, and lodging them with the French authorities, and notaire's fees etc etc. It's easier just to say it, in a French will: the money you might save now by not having one would be spent, and much more, later on.

Although it doesn't apply to you, you can in fact avoid French inheritance law if you're non-French, so long as we are still in the EU: you just invoke the relevant EU law in your French will.

Perhaps I should spell out the underlying point. Whoever administers your estate in the UK, the person doing it cannot transfer title to French house property to your chosen beneficiaries. That needs the intervention of a French notaire: they will need to be persuaded that XYZ is what they have to do, and a French will is much the easiest way of doing so.

Incidentally, although it's "geeky" in a sense this question is hardly ""Hi-Tech". It is more helpful to you to choose the appropriate sub-forum. Don't take it personally: I have a short-cut key for this comment.

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Post by SteveB » Thu 18 May 2017 14:40

Thanks, Martyn - very helpful.

Sorry about filing it under "geek/hi-tech" - a slip of the mouse!

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Post by martyn94 » Thu 18 May 2017 15:13

[quote="SteveB"

Sorry about filing it under "geek/hi-tech" - a slip of the mouse![/quote]


Don't apologize to me: I am not picky about what I look at. But I know a bit about administration of estates, and a bit about high-tech. For all I know there is a hot-shot estate practitioner here who wouldn't dream of looking at the tech thread, and might have said something quite different (though I doubt it in this case).

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Post by Helen » Thu 18 May 2017 19:03

There was a change back in 2015 which means that people who are not tax resident in France can opt, on death, to have their French assets distributed according to the law of their primary residence.


More info here:

https://www.blevinsfranks.com/news/blev ... -france-uk

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Post by martyn94 » Thu 18 May 2017 20:25

Helen wrote:There was a change back in 2015 which means that people who are not tax resident in France can opt, on death, to have their French assets distributed according to the law of their primary residence.


More info here:

https://www.blevinsfranks.com/news/blev ... -france-uk
I mentioned it a few inches up the page. You do not have to be not tax-resident, you just have to be not French. As the link makes clear.

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Post by martyn94 » Fri 19 May 2017 20:20

martyn94 wrote:[quote="SteveB"

Sorry about filing it under "geek/hi-tech" - a slip of the mouse!

Don't apologize to me: I am not picky about what I look at. But I know a bit about administration of estates, and a bit about high-tech. For all I know there is a hot-shot estate practitioner here who wouldn't dream of looking at the tech thread, and might have said something quite different (though I doubt it in this case).[/quote]

Strange to say, there is a retired solicitor here, who's just owned up to the fact (if that's the right way of putting it) on a thread in another sub-forum which was more obviously relevant to his experience. I don't think you need seek him out on this issue, but it makes my point.

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Post by Kate » Fri 19 May 2017 21:47

No problem. Moving it to Discussions. :-)

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Wills and children

Post by Phip3 » Fri 26 May 2017 10:40

It changed a few years ago and now you don't have to leave all your 'estate' to your children . I've forgotten the exact percentages , but although in France you can't cut the kids out of your will, unless you haven't made a will, they don't have to receive 100% . A notaire will charge about 100 euros and explain exactly what you can and can't do, and when French law applies . French wills have to be hand written and obviously in French.

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Post by SteveB » Wed 12 Jul 2017 19:43

Following advice on this thread, I saw a notaire today to discuss making a will and I thought it might be helpful for me to pass on what he told me. Basically there is no need to make a will to cover any property owned in France unless you want to depart from the default position, which is:
1. It is divided equally between your children, if any.
2. If any of your children pre-decease you, that child's share is divided between their children, if any.
3. In the absence of any surviving children, it goes to your next closest surviving relative.

That's roughly it; I didn't ask about spouses as I'm a widower, but I imagine they would fit in there somewhere.

If you do depart from the default position in French law, and therefore need to make a will, there is a legal requirement that at least a third goes to your children.

I can't swear that I've got it completely right, but the main point seems to be that if you want to leave all your French property to your children, there's no need to make a will as that will happen automatically by default.

He also mentioned property and inheritance taxes, which seem to be quite high - I can also go into this if anyone's interested.

Steve

Thanks

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Post by martyn94 » Thu 13 Jul 2017 14:13

SteveB wrote:Following advice on this thread, I saw a notaire today to discuss making a will and I thought it might be helpful for me to pass on what he told me. Basically there is no need to make a will to cover any property owned in France unless you want to depart from the default position, which is:
1. It is divided equally between your children, if any.
2. If any of your children pre-decease you, that child's share is divided between their children, if any.
3. In the absence of any surviving children, it goes to your next closest surviving relative.

That's roughly it; I didn't ask about spouses as I'm a widower, but I imagine they would fit in there somewhere.

If you do depart from the default position in French law, and therefore need to make a will, there is a legal requirement that at least a third goes to your children.

I can't swear that I've got it completely right, but the main point seems to be that if you want to leave all your French property to your children, there's no need to make a will as that will happen automatically by default.

He also mentioned property and inheritance taxes, which seem to be quite high - I can also go into this if anyone's interested.

Steve

Thanks
Perhaps I wasn't clear before, or perhaps I'm just wrong. It was always clear that the default position was suitable for you. But you only get the default position if there's actually a "default" - ie you've made no will applicable to your French property. But you have said that you do have an English will, and unless it says something fancy (which doesn't seem to be so, though I'm guessing) it will apply to your worldwide assets, and your English executors will be obliged to execute it in relation to your French property. That can perfectly well be done, if your English will is within the constraints of French inheritance law, as apparently it is.

But enforcing a foreign will in France or anywhere else still takes time and expense and endless translations and general paperasse, even if you won't be around to enjoy it. And even if your will happens to say the same thing about your French property as would have applied had you died intestate. I assume that's why your UK solicitor advised you to a get a separate French will for your French property. It's nothing at all to do with who gets what, just about tidying your estate away efficiently and quickly.

The corollary, obviously, is that your UK will would need to be tweaked so as not to dispose of your French property, if it doesn't already carve it out.

But don't believe me, have another word with your UK solicitor. Even solicitors sometimes talk sense, if you bother to listen.

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Post by martyn94 » Thu 13 Jul 2017 16:29

[quote=

He also mentioned property and inheritance taxes, which seem to be quite high - I can also go into this if anyone's interested.

Steve

Thanks[/quote]

You bet they are, and painfully so if your beneficiaries are not a spouse, or children, or parents.

I used to be involved in IHT in the UK, and there would be rioting in the streets if the French rates applied there. But no-one (or no-one with any leverage) seems to much care over here. And it's not even, so far as I know, that you can just avoid it as easily as you can in the UK.

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Post by alan » Thu 13 Jul 2017 20:33

Martyn94 wrote:

“…you do have an English will, and unless it says something fancy (which doesn't seem to be so, though I'm guessing) it will apply to your worldwide assets,…â€￾

I’m afraid that this isn’t entirely correct. An English Will would not apply to a French home unless it does say, “something fancyâ€￾ in the light of something known as Brussels IV. Traditionally, there is a distinction between immovable property and movable property. Here is an extract from “Parker’s Modern Wills Precedentsâ€￾ (though not the most recent edition):

“…although the rule for English conflict of laws purposes is that the law of the testator’s domicile applies to movable property it is the law of the state in which immovable are situated which applies to themâ€￾.

Personally, I would take advice from an English firm of solicitors which also has expertise in French inheritance and tax law. There are a number on the internet but if anyone wants a name (though not a recommendation), please send me a pm.

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Post by SteveB » Thu 13 Jul 2017 21:06

To clarify the matter, it was an English lawyer who initially suggested I should get a French will to cover my French property, as it wouldn't be governed by English law. However I think it's reasonable to assume that a French not sure would be more familiar with French law than an English solicitor, so I'm reasonably confident about following his advice that a separate French will isn't necessary.

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Post by martyn94 » Thu 13 Jul 2017 22:46

SteveB wrote:To clarify the matter, it was an English lawyer who initially suggested I should get a French will to cover my French property, as it wouldn't be governed by English law. However I think it's reasonable to assume that a French not sure would be more familiar with French law than an English solicitor, so I'm reasonably confident about following his advice that a separate French will isn't necessary.
You're the boss. But you might at least read through your English will, and see what it does and doesn't claim to do. It's normal for them to deal with your affairs in very broad terms ("all my real and personal property whatsoever and wheresoever situated....") and your executors' duty to execute it is certainly governed by English law if it's an English will.

My concern is that your English lawyer gave you quite specific advice and that you don't (dare I say it?) fully understand their reasoning, but still want to ignore it. Before doing so, why not just check back with them ?

But what the hell: you won't have to pick up the pieces.

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Post by SteveB » Fri 14 Jul 2017 05:42

Just re-read my last message that was meant to clarify matters, and realised that "notaire" came out as "not sure" through predictive text. My point was that my English lawyer may have been right to point out that French property would not be covered by an English will, but wouldn't necessarily be familiar enough with French law to realise that what I wanted to do would happen by default, without a will.

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Post by martyn94 » Fri 14 Jul 2017 13:34

SteveB wrote:Just re-read my last message that was meant to clarify matters, and realised that "notaire" came out as "not sure" through predictive text. My point was that my English lawyer may have been right to point out that French property would not be covered by an English will, but wouldn't necessarily be familiar enough with French law to realise that what I wanted to do would happen by default, without a will.
I don't know what your English will says, and don't want to. But normally it will "cover" all your property everywhere, at least so far as English law is concerned, unless it says quite explicitly that it doesn't. There is any amount of international law allowing English wills (for example) to be implemented in France (for example), and there are international treaties which say what happens when there are different legal systems in play and they potentially clash.

But just think of it this way. Some day, hopefully long deferred, you will pop your clogs, and your beneficiaries will need to go to your notaire in France and say "please transfer daddy's house to us". The first question they will get is "Is there a will?". They could say "Yes, in English, under English law, and it's being administered by Messrs Sue, Grabbitt, and Runne, somewhere in the Home Counties." Or they could say "Yes, you wrote it yourself and it's in one of your filing cabinets".

Which do you think is likely to cause least aggravation?

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Post by Phip3 » Sat 15 Jul 2017 13:46

Helen wrote:There was a change back in 2015 which means that people who are not tax resident in France can opt, on death, to have their French assets distributed according to the law of their primary residence.


More info here:

https://www.blevinsfranks.com/news/blev ... -france-uk
When I made my French will in 2015 this is what the notaire told me. I'm a tax resident and hence made French will . However, I also have a UK will which I updated asking the solicitor to include a bit of info about my French will and where to find it . Yet another thing that I have forgotten : The notaire send my will off to, maybe not the actual will, some sort of central registration place. I've got a note of the add somewhere but also sent info to sons with explanation of what to do when the end comes.

My 'English Estate' is very small but remember things change . My previous will was nearly 30 years old . For example: I can image a situation where after Brexit I might be forced back to the UK and will no longer be a French tax resident . If this should happen I can't imagine that one of the first things on my mind to do will be to make a will. I wouldn't be surprised if the move finishes me off.

As Martyn has strongly hinted , do you really want an English solicitor having to deal with the 'French System of Admin' when you fall of your perch. Hopefully, not for many more years.

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Post by alan » Sat 15 Jul 2017 15:08

The register of wills in France is the fichier central des dispositions de dernières volontés

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Post by alan » Tue 18 Jul 2017 12:20

I have been doing a bit more research.

Just to recap, Steve is a widower who wants his children to inherit his French house and has been advised in France that a will is unnecessary because this happens anyway under French intestacy law.

I think that the only reason to have a French will in such circumstances is that in a French will he would be able to appoint an Exécuteur testamentaire to oversee things. There would have to be special circumstances requiring this and the leading (though a bit dated) text in English is Dyson, "French Property and Inheritance Law" which says:

"It is extremely unlikely that any French lawyer will advise such an appointment of his own volition".

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Post by SteveB » Tue 18 Jul 2017 13:53

Well, in response to the various advice and warnings people have sent me, I have just checked my (UK) will. This states clearly that it only applies to property in the UK, and indeed I remember the solicitor at the time advising me this was the case, and suggesting for that reason that it I should get a separate French will to cover my property there. However, as I said previously, a notaire recently advised me that a will was not necessary - I assume it was unlikely that he would voluntarily deprive himself of the relevant fee if he thought there was any useful purpose to drawing up a will. So I'm happy to go by his advice. I also think it it unlikely that solicitor who drew up my will in the UK would have been sufficiently knowledgeable about French law to be able to advise me that a will was unnecessary, and in any case would have tended to err on the side of caution.

So I appreciate the various comments people have made, but I have made my decision.

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Post by martyn94 » Tue 18 Jul 2017 14:03

alan wrote:Martyn94 wrote:

“…you do have an English will, and unless it says something fancy (which doesn't seem to be so, though I'm guessing) it will apply to your worldwide assets,…â€￾

I’m afraid that this isn’t entirely correct. An English Will would not apply to a French home unless it does say, “something fancyâ€￾ in the light of something known as Brussels IV. Traditionally, there is a distinction between immovable property and movable property. Here is an extract from “Parker’s Modern Wills Precedentsâ€￾ (though not the most recent edition):

“…although the rule for English conflict of laws purposes is that the law of the testator’s domicile applies to movable property it is the law of the state in which immovable are situated which applies to themâ€￾.



Personally, I would take advice from an English firm of solicitors which also has expertise in French inheritance and tax law. There are a number on the internet but if anyone wants a name (though not a recommendation), please send me a pm.
I am very shy about answering back to you of all people. And I have no idea what SteveB's English will actually says, and (as I've said) have no desire to know.

But I'm not clear that rules about conflict of laws are in point here. As I understand it, SteveB is perfectly entitled to make an English will leaving his French property to anyone he chooses. The question then would be whether it could be made to stick: the French law on inheritance of French real property would over-ride an English will if they conflict.

But in this case the laws cannot conflict; it's clear that SteveB is entirely content with what his beneficiaries would get under the French rules for intestate succession. And anything in his English will is presumably consistent with that. The question is a very boring (but possibly not inexpensive) one: what is the cheapest and quickest way of getting SteveB's wishes actually implemented, when the time comes, given that ultimately a French notaire will have to do the French end (and know that they have the right to do so) and an English executor will still need to be satisfied that they have done all their duty.

So far as I can gather (it's not relevant to me), English practitioners with expertise in this area think it's preferable to leave a French will in positive terms rather than work through the French "default" provisions. And SteveB already seems to have been advised in that sense. But I am sure that you are right that he might well seek further advice rather than just plough on.

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Post by martyn94 » Tue 18 Jul 2017 14:18

SteveB wrote:Well, in response to the various advice and warnings people have sent me, I have just checked my (UK) will. This states clearly that it only applies to property in the UK, and indeed I remember the solicitor at the time advising me this was the case, and suggesting for that reason that it I should get a separate French will to cover my property there. However, as I said previously, a notaire recently advised me that a will was not necessary - I assume it was unlikely that he would voluntarily deprive himself of the relevant fee if he thought there was any useful purpose to drawing up a will. So I'm happy to go by his advice. I also think it it unlikely that solicitor who drew up my will in the UK would have been sufficiently knowledgeable about French law to be able to advise me that a will was unnecessary, and in any case would have tended to err on the side of caution.

So I appreciate the various comments people have made, but I have made my decision.
So be it. But I think you may be missing one point. If you have left an English will (which could potentially apply to your French property) your French notaire is likely to want to be satisfied (with due formality) that it doesn't in fact apply (as you say it doesn't). And of course satisfy themselves that there isn't a French will that they just don't know about. I think that these may be the sort of complications that your English adviser had in mind.

It would be cynical to think that your notaire has foregone their fee for making a very cheap will in the expectation of more lucrative complications later on. And I'm sure it's not so.

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Post by martyn94 » Wed 19 Jul 2017 16:15

alan wrote:I have been doing a bit more research.

Just to recap, Steve is a widower who wants his children to inherit his French house and has been advised in France that a will is unnecessary because this happens anyway under French intestacy law.

I think that the only reason to have a French will in such circumstances is that in a French will he would be able to appoint an Exécuteur testamentaire to oversee things. There would have to be special circumstances requiring this and the leading (though a bit dated) text in English is Dyson, "French Property and Inheritance Law" which says:

"It is extremely unlikely that any French lawyer will advise such an appointment of his own volition".
Just out of curiosity, if you had been advising someone in England with only English real property, and very straightforward intentions, whether to make a simple will, or leave it to the intestacy rules, what would you have said? I have always understood that it's a bit less fuss, if only marginally, to execute a will than to administer an intestate estate. But I'm nobody's idea of a lawyer.

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Post by alan » Wed 19 Jul 2017 17:39

I would always advise someone to avoid English intestacy rules which can produce some strange results. By making a will, you can choose your executors and unlike in France, you can generally choose who inherits.

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