Intestate law in france
Any foreign nationals can buy a property in France as a secondary or main residence. The French system of conveyancing law is different and despite being as safe as the English one, the legislation and practice are different. This is a stressful time for everybody due to the fact that they are not only dealing with a foreign legal system but also a foreign language.
The conveyancing itself is not complicated but will still require attention to make sure that you do not find out any pitfalls before completing it. As a
purchaser, it is normal that you focus on the purchase, sometimes to the detriment of estate planning. Buying and having estate planning at the same
time can be useful and prevent any unexpected issues in the long term.
Any foreign nationals can buy a property in France as a secondary or main residence. The French system of conveyancing law is different and despite being as safe as the English one, the legislation and practice are different. This is a stressful time for everybody due to the fact that they are not only dealing with a foreign legal system but also a foreign language.
The conveyancing itself is not complicated but will still require attention to make sure that you do not find out any pitfalls before completing it. As a
purchaser, it is normal that you focus on the purchase, sometimes to the detriment of estate planning. Buying and having estate planning at the same
time can be useful and prevent any unexpected issues in the long term.
The purpose of this article is not to go through all the different options to purchase a property but to recap the legal system set out in the French civil
code (articles 731 to 767) if you have not thought about it before purchasing.
I will have to consider various scenarios with a couple, French residents or not, married or not, with or without a civil partnership and with or without a UK Will. I deliberately excluded a French Will as it is one of the last tasks purchasers will think of when they acquire their property. From experience, having a UK will in place is fairly common, having a French will, less. Each scenario will have a different outcome on the way the estate will be divided between beneficiaries or legal heirs.
1 - Married couple purchased a property 50/50 full ownership/second home
This is probably the most straightforward and common way of purchasing a property in France. Without a Will (English or French), and after the first death, the deceased's share will be divided among the surviving spouse and any children, alive or represented. In the presence of common children, the surviving spouse can opt between a full life interest or ¼ absolutely. The life interest is more interesting because it can provide lifetime use of the property and in some cases an additional income. It is also a way of reducing any inheritance tax owed by the children.
In the presence of children from a precedent union, the surviving spouse is only entitled to ¼ absolutely, which could create a conflict with the children and a lack of freedom to use the property.
2 - Married couple purchased a property 50/50 full ownership/main residence
The only difference between the previous scenario and the present one is the couple's residence. If they elected their residence in France, the surviving spouse will get an additional right over the property and contents. The lifetime use of the property is called “droit viager au logementâ€. It protects the surviving spouse and enables him/her to retain a roof above his/her head until his/her demise. The advantage of that legal right is that it can only be revoked by the deceased (during his/her lifetime) by means of an authentic will only and the children cannot convert the droit viager to an annual rent.
If one spouse were to buy the property in his name only, the same rules will apply after his death. Depending on the presence of children from a common relationship, the surviving spouse will be entitled to a ¼ share or a life interest.
A surviving spouse's legal rights will be different in the presence of siblings, parents or other relatives. In most cases, the surviving spouse will be
allocated a higher share.
3 - Couple not married, purchased a property 50/50 full ownership
That is one of the worst scenarios because none of the co-owners (concubin) is protected. After the first death, the deceased's share will pass to his/her
heirs (children, parents, siblings...) and the co-owner will have no other right than the 50% share purchased. What will happen is a co-ownership between the co-owner and the deceased's heirs who could be extremely unpleasant, wanting their share of the property or trying to force the sale of the property.
4 - Couple not married, purchased a property 50/50 full ownership/Civil partnership in place
Having a civil partnership in place, whether signed in France or abroad, would make a difference when you settle an estate. However, the difference will only arise if the deceased made a Will in favour of his partner. Without a Will, the civil partnership has no effect over the settlement of the estate and the surviving partner will be in the same position as a concubin. The only difference is that the surviving partner will benefit from a temporary right to use the property and its contents (one year from death). It is crucial that any partners with a civil partnership have a will in place in order to benefit from the tax advantages provided by the French tax code but also to protect their partner.
5 -The existence of a UK Will
If there is one thing that British people excel at over the French is having a Will in place to deal with their affairs, whether it was drafted 20 years or a
few months ago. Indeed, an old or recent will may not have the same effect on the settlement of an estate in France and the share allocated to any surviving spouse or partner. As you know, the EU succession law that came into force in August 2015 allows a British citizen to choose the English law as the law applicable to the settlement of the estate. As a result, it is possible to overcome the stipulations of the civil code, the heirship and any issue of co-ownership with unwanted relatives or heirs.
However, it is not as simple as it looks. I will take two very simple examples:
a-The deceased made a standard/classic Will 8 years ago bequeathing his entire estate to his wife only. No mention of jurisdiction to settle the estate. All children are disinherited in that English will. Could we fully apply the will in France?
The answer is NO. Despite being valid, the will cannot be applied in France entirely because there is no express stipulation, within the will, that the deceased wanted the UK law to be applied to his estate. The fact that the will may refer to the Special provisions of the Society of Trust and Estate Practioners is not enough to consider a choice of law, the fact that common law does not know the concept of heirship will not be a valid argument.
As a result, the Will applies within the limit of the article 1094-1 of the civil code. The children will inherit a share of the estate despite the stipulations
of the UK Will.
b- In the second example, the deceased made a will a few months ago and did think of the choice of law. Some templates available online will provide the option;still, it must be drafted correctly to prevent any challenge or misinterpretation. With a choice of law, the will can be fully applied, and the
children will be disinherited. With an English Will, the process might be longer than for a French Will; for this reason, it is sometimes wise to have a
separate French will but structured with the English Will to work together and not revoke each other.
As you can see, one will, made at a different time, may have a completely different interpretation in France and the sharing of the property may not
match what you aimed for.
Conclusion
When you consider estate planning with assets in different countries, there are several factors to look at :
- Which law governs my movable or immovable assets?
- How are they going to be divided after my death?
- Can I choose my beneficiaries without any restrictions?
- Does my national law allow me to do so?
These are some of the questions that are essential to deal with estate planning. This happens not only because you have to bear in mind the impact of the recent EU regulations regarding matrimonial regimes and civil partnership as well. When you practise international private law, estate planning is more than just a Will or where you reside, it is also where you have been, what you acquired, what you received, at what period of your life.
Any foreign nationals can buy a property in France as a secondary or main residence. The French system of conveyancing law is different and despite being as safe as the English one, the legislation and practice are different. This is a stressful time for everybody due to the fact that they are not only dealing with a foreign legal system but also a foreign language.
The conveyancing itself is not complicated but will still require attention to make sure that you do not find out any pitfalls before completing it. As a
purchaser, it is normal that you focus on the purchase, sometimes to the detriment of estate planning. Buying and having estate planning at the same
time can be useful and prevent any unexpected issues in the long term.
Any foreign nationals can buy a property in France as a secondary or main residence. The French system of conveyancing law is different and despite being as safe as the English one, the legislation and practice are different. This is a stressful time for everybody due to the fact that they are not only dealing with a foreign legal system but also a foreign language.
The conveyancing itself is not complicated but will still require attention to make sure that you do not find out any pitfalls before completing it. As a
purchaser, it is normal that you focus on the purchase, sometimes to the detriment of estate planning. Buying and having estate planning at the same
time can be useful and prevent any unexpected issues in the long term.
The purpose of this article is not to go through all the different options to purchase a property but to recap the legal system set out in the French civil
code (articles 731 to 767) if you have not thought about it before purchasing.
I will have to consider various scenarios with a couple, French residents or not, married or not, with or without a civil partnership and with or without a UK Will. I deliberately excluded a French Will as it is one of the last tasks purchasers will think of when they acquire their property. From experience, having a UK will in place is fairly common, having a French will, less. Each scenario will have a different outcome on the way the estate will be divided between beneficiaries or legal heirs.
1 - Married couple purchased a property 50/50 full ownership/second home
This is probably the most straightforward and common way of purchasing a property in France. Without a Will (English or French), and after the first death, the deceased's share will be divided among the surviving spouse and any children, alive or represented. In the presence of common children, the surviving spouse can opt between a full life interest or ¼ absolutely. The life interest is more interesting because it can provide lifetime use of the property and in some cases an additional income. It is also a way of reducing any inheritance tax owed by the children.
In the presence of children from a precedent union, the surviving spouse is only entitled to ¼ absolutely, which could create a conflict with the children and a lack of freedom to use the property.
2 - Married couple purchased a property 50/50 full ownership/main residence
The only difference between the previous scenario and the present one is the couple's residence. If they elected their residence in France, the surviving spouse will get an additional right over the property and contents. The lifetime use of the property is called “droit viager au logementâ€. It protects the surviving spouse and enables him/her to retain a roof above his/her head until his/her demise. The advantage of that legal right is that it can only be revoked by the deceased (during his/her lifetime) by means of an authentic will only and the children cannot convert the droit viager to an annual rent.
If one spouse were to buy the property in his name only, the same rules will apply after his death. Depending on the presence of children from a common relationship, the surviving spouse will be entitled to a ¼ share or a life interest.
A surviving spouse's legal rights will be different in the presence of siblings, parents or other relatives. In most cases, the surviving spouse will be
allocated a higher share.
3 - Couple not married, purchased a property 50/50 full ownership
That is one of the worst scenarios because none of the co-owners (concubin) is protected. After the first death, the deceased's share will pass to his/her
heirs (children, parents, siblings...) and the co-owner will have no other right than the 50% share purchased. What will happen is a co-ownership between the co-owner and the deceased's heirs who could be extremely unpleasant, wanting their share of the property or trying to force the sale of the property.
4 - Couple not married, purchased a property 50/50 full ownership/Civil partnership in place
Having a civil partnership in place, whether signed in France or abroad, would make a difference when you settle an estate. However, the difference will only arise if the deceased made a Will in favour of his partner. Without a Will, the civil partnership has no effect over the settlement of the estate and the surviving partner will be in the same position as a concubin. The only difference is that the surviving partner will benefit from a temporary right to use the property and its contents (one year from death). It is crucial that any partners with a civil partnership have a will in place in order to benefit from the tax advantages provided by the French tax code but also to protect their partner.
5 -The existence of a UK Will
If there is one thing that British people excel at over the French is having a Will in place to deal with their affairs, whether it was drafted 20 years or a
few months ago. Indeed, an old or recent will may not have the same effect on the settlement of an estate in France and the share allocated to any surviving spouse or partner. As you know, the EU succession law that came into force in August 2015 allows a British citizen to choose the English law as the law applicable to the settlement of the estate. As a result, it is possible to overcome the stipulations of the civil code, the heirship and any issue of co-ownership with unwanted relatives or heirs.
However, it is not as simple as it looks. I will take two very simple examples:
a-The deceased made a standard/classic Will 8 years ago bequeathing his entire estate to his wife only. No mention of jurisdiction to settle the estate. All children are disinherited in that English will. Could we fully apply the will in France?
The answer is NO. Despite being valid, the will cannot be applied in France entirely because there is no express stipulation, within the will, that the deceased wanted the UK law to be applied to his estate. The fact that the will may refer to the Special provisions of the Society of Trust and Estate Practioners is not enough to consider a choice of law, the fact that common law does not know the concept of heirship will not be a valid argument.
As a result, the Will applies within the limit of the article 1094-1 of the civil code. The children will inherit a share of the estate despite the stipulations
of the UK Will.
b- In the second example, the deceased made a will a few months ago and did think of the choice of law. Some templates available online will provide the option;still, it must be drafted correctly to prevent any challenge or misinterpretation. With a choice of law, the will can be fully applied, and the
children will be disinherited. With an English Will, the process might be longer than for a French Will; for this reason, it is sometimes wise to have a
separate French will but structured with the English Will to work together and not revoke each other.
As you can see, one will, made at a different time, may have a completely different interpretation in France and the sharing of the property may not
match what you aimed for.
Conclusion
When you consider estate planning with assets in different countries, there are several factors to look at :
- Which law governs my movable or immovable assets?
- How are they going to be divided after my death?
- Can I choose my beneficiaries without any restrictions?
- Does my national law allow me to do so?
These are some of the questions that are essential to deal with estate planning. This happens not only because you have to bear in mind the impact of the recent EU regulations regarding matrimonial regimes and civil partnership as well. When you practise international private law, estate planning is more than just a Will or where you reside, it is also where you have been, what you acquired, what you received, at what period of your life.