When advising clients who own assets in France on their cross-border estate planning, one of the most frequent questions we encounter (along with “How can I avoid the restrictive French forced heirship rules?” which we will explore separately) is “Do I really need a French Will?” And in typical lawyer fashion, the answer often is, “Well, it depends,” and things get complicated from there.
Is a French will really mandatory?
That said, there is one clear initial answer that we can provide, and that is it is not mandatory under French law to have a French will (of which there are four types of French wills). You may be advised that it would be a good idea to have a French will, and in this blog we will look at the main considerations when deciding between an English will or a French will, but you will not get in trouble for not having a French will, and in particular the French government will not inherit your French assets just because you have not made a French will. Though if you have not made a will (French or otherwise) to cover your French assets, they may pass under the rules of intestacy in a way that you would not be happy with.
Will my English will be accepted in France?
A second very clear point that we can make is: your valid English will, unless it expressly excludes your French assets from its scope, will not and cannot be ignored in France. This is a result of international legislation called the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. For the purpose of this article, we will just refer to it as the 1961 Hague Convention.
The 1961 Hague Convention sets out that if a foreign will is made in compliance with the internal laws of either:
- the place where the testator made it;
- a nationality possessed by the testator;
- a place in which the testator had their domicile;
- the place in which the testator had their habitual residence;
- concerning immovable property, the place where the property is situated.
If so, the will is automatically valid and produces effects in the other countries which are party to the Convention (including France and all jurisdictions of the UK).
What this means in practice is that:
- If you are a British national and make a will that is valid either under the law of England & Wales, Scotland or Northern Ireland, this will is valid and produces effects in France.
- If you are not a French national and want to (or are advised to) make a French will, this will must be executed whilst you are physically present in France to validly apply to your French moveable assets (bank accounts, furniture, jewellery, car, French registered company shares, etc.). This is a little quirk of the 1961 Hague Convention which can catch testators off guard.
- If you are a British national and you make a French will whilst being physically present in France (for example, because you live in France), this French will is also valid and produces effects in the UK, whilst at MW Notary we mainly focus on wills that apply in France; the reverse is also true and important to know if there are assets to be administered in the UK.
It is important to note that the efficiency of an English will works both ways; there may be cases where the English will was executed many years ago, before you acquired assets in France, and was never updated, therefore producing unexpected effects with (sometimes catastrophic) unintended consequences. For example, causing the French assets to pass into a trust. The Hague Convention does not set out that the English will is automatically valid in France unless it produces unintended undesirable effects, and therefore we must take the good with the bad, with the key takeaway point being that you should always keep your will(s) under review.
*Should* I have a separate French will?
Now that we have clarified that you don’t need a French will and that an English will can produce effects in France, the question then becomes, would a French will be a good idea or even work, taking into account your specific circumstances and requirements, or is an English will sufficient?
Pre-2015, before the European Succession Regulation (“EUSR”, also known as Brussels IV) came into force, it was good practice to have one will for each jurisdiction, and this advice is often still given by advisors with less experience of Franco-British cross-border estate planning, though it no longer reflects the more nuanced position and best practice under the current state of the law.
Things changed when the EUSR came into force, as it introduced the possibility for a testator to opt for the law of their nationality to apply to their worldwide estate (instead of the possibility of having two separate laws applying). Prior to the EUSR, if you were a British national domiciled in the UK with a holiday home in France, the advice was that French law would apply to your French immoveable assets and English law to the rest of your estate, and therefore that you should have an English will excluding your French immoveable assets (or all your French assets) and dealing with your English assets, and a separate French will to cover your French assets (immoveable, or both immoveable and moveable).
Now that you can opt for the law of your nationality to apply to your worldwide estate, if this is the recommended option for you, we will also advise that it is, in our opinion, best practice for you to have an English will covering your worldwide estate, including your assets in France, electing for the law of your nationality to apply (which we refer to as a “choice of English law English will”).
The reason for this is that when you opt for English law, you opt for both substantive and procedural English law. What this means in practice is that Personal Representatives (PRs) will need to be appointed to administer your estate. If you have opted for English law in a French will (which is possible, but something we would advise against), then the formalities for the appointment of the PRs become more complex. Should the formalities be carried out in England? The Probate Registry should, in principle, accept a French will, but if you do not have assets in England & Wales, they can be difficult in agreeing to issue a grant, and if they do agree, there will be a lot of additional paperwork to be provided at a cost. Should the formalities be carried out in France? The appointment of PRs is not a procedure that exists under French law, and the French courts will be slow to understand what needs to be done, which means additional delays and costs to the estate.
And that is when you have appointed executors in your French will. There are still a number of advisors who prepare choice of English law French wills without having been trained in English law and therefore with a limited understanding of how it actually works, what it requires, and the practical and legal implications of the choice of law for the estate and estate administration.
Having a single choice of English law with an English will (instead of a choice of English law with a French will) being applied to your worldwide estate means that you will have obtained legal advice from an English law specialist (including as regards any potential claims against your estate; avoiding French law does not mean that your estate is claim-proof), that your will was draughted with English law as a main consideration, and that you will therefore be able to apply for a grant in England without formalities headaches (especially now that the timescales in issuing grants are slowly reducing).
Is it better to have a choice of English law with an English will to apply to your worldwide estate?
As stated above, if our advice is that you should opt for English law to apply to your worldwide estate, then we will advise that you should have a choice of English law with an English will.
There will, however, be cases where a choice of English law is either not possible (for example, if you are a French or other foreign national that is not also a British national) or necessary (you are happy for your assets to pass in a way that is compatible with French law). In such circumstances pros and cons will need to be weighed, and the decision ultimately will depend on your preferences.
Some of the main considerations are as follows:
- It is, in general, easier (in terms of administration procedures) for each country to apply a will draughted under their own form and under their own law. It will be easier for a French will to be applied to your French assets in France and for an English will to be applied to your English assets in the UK.
- Having two wills can be cumbersome and runs a heightened risk of accidental revocation. Updating the wills also becomes more complex. In general we find that our British national clients prefer to have a single worldwide English will, simply because it is tidier and easier to manage, even if applicable law does not factor in their decision.
- English wills tend to be lengthier and more complex. This means higher translation costs and also a risk that the will is not understood or applied correctly in France. Careful draughting from a cross-border professional will be required to ensure that the will works as intended in France and that the provisions that relate to the French assets are easy to translate and apply.
As with most questions in the cross-border world, the conclusion as to which testamentary setup works best for you will depend on a number of factors, and there is no “one size fits all” advice. At Marc White & Co we are pleased to offer a free cross-border estate planning consultation where we will take the time to understand your personal circumstances, requirements and priorities, provide you with practical advice on the options available to you, and work with you to achieve the best possible outcome, working if necessary alongside your own solicitor and advisors. Contact us today.