The recent High Court judgment in Euro Accessories Limited  EWHC 47 (Ch) has shed some light on the interpretation of “fair value” for a compulsory transfer initiated by a...
Wills and Guardianship - French Law
If you own property or other assets in France, it is important to make a Will covering those assets to ensure they are distributed to your chosen beneficiaries in the event of your death. Above all, a properly drafted Will can help your loved ones at a distressing time by formalising your wishes and avoiding the unnecessary application of French or English intestacy rules.
If you die “habitually resident” in England & Wales without a Will covering your French assets, your immoveable assets in France (i.e. land &/or buildings) are likely to be governed by French law. Consequently, it is vital that you take cross-border professional advice on the implications. If you then decide to make a French Will, we can draft it for you. Alternatively, if you want English law to apply then we can also assist (assuming you are a British national who is most closely connected with England & Wales, rather than Scotland or Northern Ireland).
In both cases, we highly recommend that you take advice from specialists familiar with the law of both countries. Even if you choose to make a Will under English Law, it must still be applied by a Notaire in France, who will then need to administer your French assets in accordance with English law and procedure (with which he is unlikely to be familiar).
Here’s a more detailed look at the reasons why our French team lawyers are ideally placed to advise you on making a Will for your French assets:
- Receive comprehensive, integrated advice by specialists of both jurisdictions
Our private client team specialise in making English Wills and our international team have expertise in French property and inheritance law, including making Wills to cover French assets. They work together to achieve the best result for clients, taking their worldwide estate into consideration rather than their assets situated in England & Wales only.
Without our expert support, a common mistake is to instruct your local UK solicitor to prepare an English Will excluding your French assets with advice that you see a separate lawyer to deal with France. Consequently, you may never get around to making a separate French Will or end up making a French Will that unintentionally revokes your earlier English Will or leads to your beneficiaries paying a higher rate of inheritance tax than you had anticipated.
Another undesired outcome could be your local UK solicitor preparing a valid English Will that covers your French assets but failing to consider potential problems with non-beneficiary Executors and Trustees dealing with French property or failing to consider any wishes that may work from an English perspective but result in unwelcome additional costs, both legal and tax. You could potentially miss some exemptions and end up with a disastrous 60% French tax bill.
- Ensure that your wishes will be fully respected in France
Relying on your English Will to cover both your UK and French assets, without advice from a French law specialist, may mean that the Will is fully enforceable in England but unworkable in France. French law and English law are quite different with regards to inheritance and Wills.
Depending on your circumstances, a French Will may be the best way to ensure that your wishes for your French assets will be respected in France. Alternatively, a well-worded and straightforward English Will (ideally not containing any Trusts) may work just as well.
- Avoid the need to apply for a Grant of Probate in some circumstances
In the UK, it may not be necessary for your surviving spouse or partner to make an application for a Grant of Probate to unlock your English assets.
Even if a Grant is not required to unlock your English assets, a legalised and translated Grant may still be necessary to administer the French estate in the absence of a valid French Will. Therefore, by making a proper Will, you should avoid the need to apply for a Grant of Probate as well as the associated disbursements and translation costs.
Furthermore, if no Grant of Probate is required, your French estate should be administered more quickly, thereby minimising the likelihood of your beneficiaries missing the deadline for the payment of French Inheritance Tax and having to pay late payment interest or penalties.
- Avoid uncertainty about the law applicable to your estate
If you should die whilst habitually resident in France and have not chosen to make a Will with English law applying to your worldwide estate, French law is likely to apply instead, which may lead to unexpected and costly results.
Therefore, it is advisable to take cross-border expert advice before your move to France, so that you can make an informed choice of the law that best suits your circumstances and wishes, not only in terms of who you wish to benefit from your estate but also what the French and UK Inheritance Tax consequences will be.
Likewise, if you are buying or already own a second home or investment property in France, you need to understand the consequences in terms of French and English inheritance law and tax. Don’t leave the outcome to chance but take advice from specialists who are well versed in the legal and tax systems of both countries.
- Avoid the stress associated with dealing with professionals in France
Local French lawyers can competently administer a purely French estate. However, they often struggle when there is a cross-border element, such as a property owned in France by a UK resident British national, or a British national who moves to France and later dies there owning assets in both France and the UK.
As UK based specialists who understand both laws and the way they interact, we can help where Personal Representatives, beneficiaries and their advisers need our support to overcome language barriers and bridge the legal and cultural gaps often present in the context of cross-border work.
We can deal with the French Notaire and other professionals on your behalf, thus reducing the stress for you at what is likely to be a difficult time.
If we have already assisted in the preparation of your Will(s), we will have developed a relationship with your local Notaire’s office in France. Therefore, the process should be smoother and more efficient when the time comes to administer your French estate.
- Avoid unpleasant inheritance tax surprises
By having both your UK and your French Wills prepared by the same lawyers, you can maximise the tax efficiency of your estate planning in both countries.
For example, French law does not fully recognise Trusts. Therefore, if you have left French properties to a Trust created by your Will, their transfer to the Trust on your death may be taxed at a very high rate under the French inheritance tax rules. We can give you the appropriate advice to help you avoid this kind of pitfall.
- Making more effective guardianship choices
If you have minor children in the UK or in France, you might want to choose who will take care of them if you die whilst they are still under 18. French and UK rules on guardianship differ. However, by appointing guardians in both your French and UK Wills, you will ensure that your provisions will be recognised and respected in both countries. The administrative procedure will be much easier than requiring a judge to make a decision and you will also avoid intervention by social services.
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We can advise you as to whether one Will or two would be best according to your situation, prepare them for you and work closely with other professionals as required. If you need French and UK Wills, we will ensure that they dovetail. Most importantly, we will help you avoid the pitfalls and make the most of opportunities to save time and money for your loved ones.