If you own assets in both England and France do you have a suitable Will in place? Many married couples want to leave all their assets to their spouse when they die, and then to their children. If you wish to leave your assets in this way, you may need a Will for that to happen in England and you nearly always need a Will for that to happen in France.
Although it is not always appropriate, you will often need two separate Wills to cover your assets in the UK and France. It’s important to be aware that the succession laws of these countries differ and therefore the Will, or possibly two Wills, need to be drafted so they work well within the jurisdiction they are to be used.
Under English law you have testamentary freedom, meaning that you can leave your assets to whomever you like. Therefore, if you want to leave everything to your spouse and then to your children when your spouse passes away, you can usually do this quite easily by creating a simple Will.
However, French law does not recognise testamentary freedom. Under French law ‘forced heirship’ is practiced, meaning that you must leave your children a percentage of your assets on your death – you cannot generally leave all your assets to your spouse. If you have one child, half of the French assets would be inherited by your child. If you have two children, two thirds would be inherited by your children and if you have three or more children three quarters of your assets would be inherited by your children equally.
This can cause a number of consequences, including but not limited to financial difficulties for the surviving spouse and potential problems selling the French property.
Further difficulties arise if you have children from previous relationships, as under French law step-children are not recognised as heirs. The way that your French property is owned could dictate whose children inherit the property, dependent on which spouse passes away first. There are also different French inheritance tax rates that need to be considered as step children and biological children are treated differently.
In order to avoid the French forced heirship rules you may be able to make an election for English law to apply in your Will by taking advantage of the EU succession regulation (EU650/2012). However, wider consideration does need to be given to prevent any unintended consequences, such as increasing your French inheritance tax liability.
It is therefore important if you have assets in both England and France that you receive advice from a specialist international and cross-border solicitor who will consider the laws of both countries and will help you to put Wills in place to ensure that your assets pass as you wish them to on your death.
If you would like to discuss your Wills and estate planning, please contact a member of the International and Cross-Border team.