Many British people own second homes in France, so I am regularly asked about making a French Will. My advice is always that if you own real property (i.e. a house, apartment, land or similar) in another jurisdiction such as France, it is best and simplest to limit the scope of your UK Will to your UK assets only. You should also make a separate Will in the local form to deal with your French assets, and your French notary will need to be made aware of your UK Wills so that they can take care not to accidentally revoke your UK Will in the process.
I suggest making a separate Will for each jurisdiction in which you own real property, because legal concepts vary across jurisdictions – for example, in France there is no such thing as an executor, and there is a forced heirship system unknown in England & Wales. Everything tends to go more smoothly on death if the authorities in the country in question are presented with a Will in a form that is familiar to them.
Forced Heirship
The French legal system is based on a civil law system rather than a common law one. In the UK, we have the freedom to leave our assets to whoever we wish. When making a French Will, the French system of forced heirship is much more prescriptive about who gets what, and depending on the number of children the deceased had, their children will receive between half and three quarters of their estate. The surviving spouse of the deceased will usually either inherit a minority interest in the deceased’s French property or a life interest, i.e. a right to occupy it for life. However, one can choose to vary the usual rules in France by holding French property ‘en tontine‘, which is similar to an English joint tenancy, whereby the half share of the house belonging to the first to die will automatically pass to the surviving spouse.
Matrimonial Property Regime
In France, there is a matrimonial property regime which governs how property is held between spouses. The default position is the not-unreasonable-sounding ‘community of acquisitions’, whereby assets acquired by either spouse during the marriage are treated as jointly owned, but assets acquired prior to the marriage or inherited at any time during it are separately owned.
Tax Residence in France
If you find yourself in the fortunate position of owning a second home in France and spending increasing amounts of time there, either because of the ability to work from home, or perhaps if you are approaching retirement, it is important to be aware that there could come a point when you would be viewed as tax resident in France. This would affect both your lifetime tax position and how your estate would devolve and be taxed on death. French tax residents are subject to French income tax on their worldwide income, and France has the reputation of being intolerant of those owning assets in low-tax, offshore jurisdictions, which can result in penal rates of French tax. If you suspect you may be likely to become French tax resident, you should take advice from a good law firm with plenty cross-border experience. Chiltern Wills is a UK-based business and cannot advise on French law – this post is for general interest only.
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Chiltern Wills is a Will writing business based in Beaconsfield and run by former London solicitor Rebecca D’Arcy. Call us on 01494 708688 or email info@chilternwills.com to discuss how we can help you with your UK Will, Powers of Attorney or probate.
