Before Brussels IV
The general rule was that French property would pass under French succession rules irrespective of your nationality, residence or domicile. An English will dealing with a French property would have been accepted, provided that it does not override the legal reserve of the heirs. Under French Law, the children cannot be deprived of a legal reserve (a defined proportion of the estate) of your French estate when you die.
One child receives 50% of your French estate, two children take two-third and three or more children take three-quarter equally between them. In the absence of children, the surviving spouse cannot be excluded from the French estate.
In practice British owners could either have a French will drafted to cover the French property or adding a codicil to their UK will.
Read on to lean about After Brussels IV...
After Brussels IV:
Regarding the right of succession, the European Regulation No. 650/2012 (Brussels IV) will enter into force on 17 August 2015 and will apply to the estates of individuals dying after that date. Its purpose is to simplify succession planning with an international dimension. Cross-border successions can be sometimes complicated as there might be conflicts of laws.
Should UK nationals be concerned due to UK opting out from Brussels IV?
This EU regulation is universal (article 20 of Brussels IV) which means that it applies even if the designated law is not that of a EU Member State or from a state who opted out. Therefore, even through the UK has opted out, Brussels IV will still affect UK nationals residing in the UK or abroad.
In accordance with Brussels IV, UK nationals are now able to choose in their will the succession laws of their nationality or the laws of their habitual residence to their assets situated in the Brussels IV zone. As The UK opted out, the English succession laws will still apply to the estate located in England & Wales for UK expats. The choice of law must be done in a will, which must be drafted according to the rules of the country of habitual residence or the country of nationality or the country where real estate is located.
What now?
UK nationals living in France or in the UK can make a will designating English law to settle their French estate.
So it is probably good news since French law differs starkly to English Law where, subject to limited statutory control, an individual is free to dispose of his/her assets as he/she wishes. This would provide freedom for UK nationals to decide how their French assets should be passed on.
Limits
It must be reminded that Brussels IV will not change the taxation status of French estates. French inheritance tax rules will still apply to the devolution of any French estate. Therefore any devolution under English law to non-married partners, step-children or any non-relatives will attract an inheritance tax rate of 60%. France, inheritance tax is calculated on the basis of the amount that each individual beneficiary receives and how he or she is related to the deceased owner.
Furthermore, another issue remains unresolved: as Brussels IV just came out of the “legal factory” (in force in August 2015): the legal reserve of the children. In its article 35, Brussels IV provides that the application of the chosen law in the will must not be incompatible with public policies of the country where it will apply. French succession laws are very protective towards the children and the designation of English law in a will depriving the children of any successions could be found incompatible with the legal reserve of the children. It is therefore possible that the French courts could consider an English will invalid, as it excludes the children from the French estate. Given the novelty of Brussels IV, this issue remains unanswered until a challenge is being brought before a French court.
Conclusions:
UK nationals can elect in their will English law to apply to their French assets. Although Brussels 4 appears to be good news for UK nationals owning properties In France, it still remains the uncertainty over an English Will being challenged before the French court if it deprives the children of their right to inherit.
To avoid these uncertainties and taking into account that French taxation rules still apply, people intending to purchase properties in France should still consider the French estate planning structures and take advice on the appropriate purchase structure and wills to ascertain that they will be in a position to transfer their French property in the way they wish and in a tax efficient manner.
This article was written by Loic Raboteau, French Legal Advisor and director of French Legal Consulting.
Francophile legal Consulting can assist you with international property matters. For more information on this topic, please do not hesitate to contact Loic Raboteau, managing director by completing the form below.
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