French Wills – are they worth it?
It may come as a surprise to many that an English Will is normally valid in France. Why then do French law practitioners often advocate the creation of a second Will to deal with French property?
Having two Wills does complicate matters: they must both be drafted so as not to overlap, or accidentally revoke each other, therefore extra care must be taken when either or both is reviewed. So what’s the point of writing different Wills for different countries?
Firstly, an English Will invariably leads to the constitution of certain trusts. In an English Probate, the deceased’s estate vests in his executor or administrator; he then holds the assets on trust for the eventual beneficiaries. France does not generally recognise the role of the executor. In France a deceased person’s assets vest automatically in the beneficiaries at the moment of death. The requirement that an executor hold everything pending resolution of the succession is likely to complicate matters.
Secondly and more importantly, France does not generally recognise trusts. The actual mechanics of an English Will are likely to cause complications for the French lawyer dealing with the French element of the estate.
Thirdly, the rules of French inheritance law and tax differ substantially from the rules in England; even the way inheritance tax is imposed is completely different. Common structures for estate planning in one jurisdiction can cause major problems in the other, especially for tax purposes. Without due consideration, 60% inheritance tax can be imposed on French assets, or the same assets can end up being taxed in both jurisdictions without any relief against double taxation.
Fourthly, French law imposes strict rules of succession, defining who is entitled to inherit. This is not the case in England, where you can normally leave ones assets to anyone. In France, children have fixed interests in the estate of their parents, and while this will often not be a problem, it is not always so. The main concern here is that step-children are not recognised in the same way as natural children. While in the UK it may be possible to anticipate everything passing from say husband to wife, with the wife then leaving everything to her husband’s children, this would cause many problems under French law.
It is important to seek specialist advice in relation to both jurisdictions, to ensure that the most suitable arrangements can be put in place for a family’s assets on either side of the English Channel. Even though one Will would be valid in both jurisdictions, this could lead to substantial complications and delays – hardly what one would want following the death of a loved one.