Property Ownership Options
- Adopt a French Marriage Contract
- Enter into a French Civil Partnership
- Make a Family Inheritance Pact
- Make a Will
- Create a Trust Structure
- European Succession Law
Financial Planning Options
- Buy or Improve with a Mortgage
- Make a Gift Between Man and Wife
- Make a Gift to Children/Grandchildren
- Make a Gift to Others
- Take out Life Insurance
4.6. Make a Will
4.6.1. Wills and French Law
If you are resident in France, in the absence of a Will or other inheritance planning measures being taken, the rules of an intestate inheritance apply.
These grant automatic rights of inheritance to a surviving married spouse and children, or to other relatives in the absence of a surviving spouse or children.
Nevertheless, a French Will (or Will made in any other country over assets based in France) cannot override French inheritance laws, which grants entrenched rights of inheritance to your children,
However, since 2015 it is possible under European law to adopt the inheritance laws of your home country.
In the presence of a Will, and without use of the European law on successions, only your children retain their entrenched rights of inheritance (you could actually disenfranchise your spouse, if you so wished, provided you had children!).
We can remind ourselves of that part of your estate which, in the presence of children, is freely disposable:
Table: Freely Disposable
|One Child||1/2 of estate|
|Two Children||1/3 of estate|
|Three Children||1/4 of estate|
As we have said in previous pages, if you are married and you want your surviving spouse to inherit all your estate, you should enter into a French marriage contract. There is simply no need, in these circumstances, to make a Will. You could also use European Succession rules to adopt the laws of your country, although there are legal problems with this approach at the present time, as we say in our guide to these rules.
If you are not married, or you do not propose to leave everything to your surviving spouse through a marriage contract, then you should make a Will.
Particularly if you are living in a civil partnership, or in 'free union', and you want to afford some protection to your surviving partner, you really need to make a Will.
It is obviously also very suitable if you wish to leave some of your estate to a charity or non-family member, e.g. guardian.
4.6.2. Advantages of a Will
One of the advantages of a Will over gifts made during your lifetime is that, except in relation to gifts between man and wife, no alteration in property rights takes place until after your death.
In addition, with a gift it is only possible to transfer assets in your current ownership, whilst it is possible to transfer all your future assets in a Will.
Moreover, a gift procedure is generally irrevocable, whilst it is possible to change a Will. A Will can evolve as family circumstances develop and change, whereas this is not the case with a gift procedure.
Indeed, through a Will it is possible to ensure that specific items are inherited by those to whom you wish to receive them. If the value of the item(s), together with their total inheritance, exceeds the amount which the person would be entitled to receive under inheritance laws, then the recipient can deal with this through monetary compensation.
If you are estranged from any of your children this could well lead to problems concerning the disposal of real estate after your death. If so, you should consider leaving the property in a Will to those children with whom you are in contact.
Whilst those favoured by such a procedure would would need to compensate their brother/sister (assuming it exceeded in value the proportion of your estate to which they were entitled), they would at least have control of the real estate, as they would not share ownership with them.
4.6.3. Disadvantages of a Will
A Will does not benefit from tax allowances as does a gift, so you will need to weigh up the two options. If your successors are likely to be liable to inheritance tax on the estate they inherit from you, then you need to consider if a gift procedure would be desirable, possibly in addition to the preparation of a Will.
Neither does a Will grant the beneficiary immediate access to your assets in the same manner as a gift. Accordingly, if you wish to transfer some of your assets during your lifetime, you need to make a gift, although given the 15-year rule that applies to gifts in relation to inheritance, it is more easily said than done.
A Will may be made either in your home country or in France, and it is also possible to write two Wills, one covering your estate in France and the estate in your home country.
Remember, however, if you are resident in France, then the distribution of your estate Will be made in accordance with your French Will, excepting real estate in your home country.
On this basis, you should make sure that whomsoever drafts your second Will, has sight of your first Will, in order to avoid any possibility that they conflict.
If you have a Will drawn up by solicitors from your home country, you need to ensure that it complies with French law. We are aware of numerous cases where French notaires dealing with an estate have refused to accept foreign Wills, when the distribution of the estate has then been carried out under French law. So you need to make sure that the Will does not conflict with the entrenched inheritance rights of family members (héritiers réservataires) under French law, or that you have taken steps to get around those rights.
One notable problem that frequently occurs is where there is a standard UK Will in place which is deemed to be a choice of UK law and applied to the estate. Unfortunately, standard UK Wills tend to appoint Trustees, often being a solicitor’s firm or a bank with no relationship to the deceased, who hold assets on Trust for the beneficiary or beneficiaries. This can potentially create a 60% tax charge as trusts are not fully recognised or understood in French law. This creates significant problems, and raises various questions to address with the notaire, adding to the overall cost and delay.
We would, therefore, strongly advise that you prepare the Will through a French notaire, but in collaboration with your UK or other home country legal advisors, to ensure that it is properly applied.
Be aware also that creating a new French Will could well override any existing Will that you may have prepared in the UK (or elsewhere) so be careful of overlapping Wills.
It is possible to make a Will in France simply in writing, provided it is in your own handwriting, without any formality, but it is preferable that it is carried out through a notaire, where the risk that it can be lost or contested is removed. Such a Will is called a testament authentique.
The notaire fee for the preparation of a Will is regulated, at €136, including VAT (2021). If the notaire prepares the Will no charge is payable for the notaire to keep the Will in their possession.
By notarial standards, this is a small fee for what is a reasonably substantial and onerous task. As a result of that, many readers report that they are unable to get a notaire to undertake the work. They have no right to refuse to do it, but many simply never reply to mails or letters. If this occurs then you need to make a formal complaint. You can read about the procedures at Complaints Against Notaires.
We are also aware of many reports of overcharging by notaires, with some demanding a fee of several hundred euros. If this occurs to you, you should consider using another notaire.
As we have previously reported in our Newsletter, overcharging is not uncommon due to the frequent complexity of their fee structure. You can read more in The Cryptic World of Notaire Fees.
If you go to the relevant page of the website of the French notaires concerning a Will, despite the extensive information that is provided, you will not find any information on the charge!
The cost of opening a Will on death are also regulated, based on the value of the Will, but there is no charge if the notaire prepared the Will.
A Will made in this way is placed on a central register (Fichier National des Dispositions de Dernières Volontés (FNDDV), so can be recovered at a later by any notaire who may be instructed to deal with the inheritance. If you have the original death certificate, you can also consult the register yourself.
A Will made in front of a notaire may later be contested by potential inheritors as being untrue or invalid, and there are cases where notaires have failed in their responsibility of due diligence as a result of which the courts have awarded damages to those who have suffered prejudice.
If you think your inheritance may be difficult or complicated, you can appoint an executor who will be responsible for the administration of your estate.
This person can be anyone, friend or professional, and is called a exécuteur testamentaire.
A Will can be changed or revoked at any time by going through the same procedure, and the notaire is under no obligation to advise the beneficiaries of any alterations or revocation.
Next: Trust Structures
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