The effects of Brexit on English and French Wills
We made English Wills leaving our UK estate in the following proportions on the second death: 20% to our 2 children in equal shares and 80% to our 3 grandchildren in equal shares. Our French Wills concern only our French property and make identical provision. Do you see any legal problem with this, and has anything changed post-Brexit?
The EU Succession Regulation (“the Regulation”) governs the law that applies to an individual’s estate. The default provision is for the law of habitual residence. For UK residents, the law of England & Wales (“English law”) applies. However, for immovable assets situated abroad, the law of the country where they are situated applies because of English international law rules. Your French immovable property would be subject to French law, under which a portion of your estate is reserved for your children (the réserve héréditaire), so the survivor of you could not inherit absolutely on the first death.
However, under the Regulation you can elect for the law of your nationality to apply instead. An election for English law would allow you to avoid the French forced heirship rules, and only provide for your descendants on the second death.
The UK did not sign up to the Regulation, and is considered a Third State. Brexit has no impact: the Regulation was applied in the same way before the UK left the EU.
Nevertheless, a new French law has been introduced, under which reserved heirs can seek compensation where a foreign law (which does not grant reserved rights) applies. This only applies where the deceased or their children are EU nationals or EU residents.
Where there is an election for English law, the notaire requires the Grant of Probate to confirm the executor’s authority to deal with the assets it covers. As you have separate French Wills (covering only your French assets) this Grant of Probate would not be relevant. An extra court procedure would probably be necessary, engendering further costs.
We might advise that you prepare a single English Will, covering your worldwide estate. It would be drafted to ensure it could be implemented in France, and include a separate clause for your French assets. The Grant of Probate would then be relevant to all your assets.
The tax position is likely to be more favourable where your grandchildren inherit in their parent’s place, rather than via a direct legacy, as we have seen instances where they benefit from their parent’s tax-free allowance of 100,000€ (instead of their own of 1,594€). Inheritance tax is charged on a sliding scale from 5% to 45% on any surplus.
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