The Importance of Having a Will in France

Last week I met with my US attorney to finalize my US will. The French will had already been written and signed, with the help of our Niçois Notaire, Carole Vangioni. She will be speaking at Après-Midi in Nice in July, and in preparation for her talk, created an important document for our clients—”The Importance of Having a Will in France.”

Maître Vangioni has given her permission to publish her document so that it benefits all of our readers. And here it is…then be sure to come hear her speak July 25th:

THE IMPORTANCE OF HAVING A WILL IN FRANCE

The European Regulation of 2012, commonly referred to as “Regulation (EU) No 650/2012,” has brought about significant changes in the realm of estate planning, particularly for individuals residing or owning assets in different countries, including France.

This regulation was enacted with the primary objective of simplifying the often complex and cumbersome process of handling cross-border estates and succession matters.

One of the key provisions of this regulation is the option it affords individuals to choose the law applicable to their succession. This means that individuals can select the legal framework they want to govern the distribution of their assets upon their death. By exercising this option, individuals can tailor their estate planning strategies to align with their personal preferences, family circumstances, and financial considerations.

For individuals who have not yet made this choice, it is highly advisable to consider having a Will in place in France. Doing so ensures that your estate will be handled in accordance with your wishes and provides clarity and guidance to your loved ones during what can be a challenging time. Additionally, having a Will can help facilitate the administration of your assets and minimize potential disputes among heirs.

The objective of this document is to provide you with a clear and easy understanding of the different stages involved in the estate planning process under the European Regulation of 2012.

By taking proactive steps to address your estate planning needs, you can gain peace of mind knowing that your affairs are in order and that your wishes will be respected in the event of your passing.

WHY HAVE A WILL IN FRANCE?

For foreign individuals owning assets in France, having a Will drafted in accordance with French law can help ensure that their wishes are respected and their assets are distributed as intended. It provides clarity and legal certainty for both the testator and their beneficiaries, particularly in cases involving assets located in multiple jurisdictions.

Additionally, not having a Will in France can lead to several inconveniences and complications in the event of the individual’s passing:

Default Distribution: The estate could be subject to the rules of intestate succession under French law. If France is the last residency of the deceased upon their death, the estate could be subject to the rules of intestate succession under French law. This means that assets may be distributed among legal heirs according to predefined rules, which may not align with the deceased’s wishes or the needs of their beneficiaries. (See below for further details.)

Potential Disputes: In the absence of clear instructions provided by a Will, there is a higher likelihood of disputes among family members regarding the distribution of assets. This can lead to lengthy legal proceedings and increased costs, as well as strained relationships among heirs.

Complexity of International Succession: For individuals with assets in multiple jurisdictions, the absence of a Will in France can exacerbate the complexity of international succession. Without clear guidance on asset distribution, heirs may face challenges navigating different legal systems, languages, and cultural norms. This will generate extra costs of having to engage legal professionals in multiple countries to search for a Will that may not be applicable in France. Additionally, the delays and uncertainties associated with this process can prolong the settlement of the estate and create financial and emotional burdens for beneficiaries. Moreover, the lack of a Will in France may lead to assets being subject to the rules of intestate succession in each respective jurisdiction, further complicating the distribution process and potentially resulting in unintended consequences for the deceased’s estate.

Risk of Unintended Consequences: Without a Will, there is a risk of unintended consequences, such as assets being distributed in a manner that does not reflect the testator’s intentions or preferences. This can result in financial hardship for beneficiaries or the exclusion of certain individuals who were intended to inherit.

Delay in Probate Process: The absence of a Will can lead to delays in the probate process, as authorities may need to appoint an administrator to handle the estate and make decisions on behalf of the deceased. This can prolong the settlement of the estate and cause additional stress for beneficiaries.

Overall, not having a Will in France can create uncertainty, complexity, and potential conflicts for both the testator and their beneficiaries. By taking proactive steps to draft a Will in accordance with French law, individuals can ensure that their estate is handled according to their wishes and minimize the risk of complications in the event of their passing.

WHAT HAPPENS IF YOU DO NOT HAVE A WILL IN FRANCE?

In the absence of a Will in France, the default rule is that the law of the state in which the deceased had their habitual residence at the time of death will apply.

Therefore, if you are not a French national but France is your habitual and main residency upon your death, the French succession law will apply to your estate. The distribution of your estate will be governed by the rules of intestate succession as outlined in the French Civil Code.

Here is what typically happens if you die without a Will in France:

Legal Heirs: The law will determine who your legal heirs are.

Distribution of Assets: Your estate will be divided among your legal heirs according to the rules of intestate succession. The specific distribution will depend on various factors, such as whether you are survived by a spouse, children, parents, or siblings (Cf. explanation of French law hereunder).

Prioritized Rights: In general, spouses and children have priority in inheritance rights over other relatives. However, the distribution can vary depending on the family situation.

Compulsory Heirship: French law imposes compulsory heirship rules, meaning certain family members are entitled to a minimum share (see explanation of French law hereunder).

Impact on Survivor Spouse: These compulsory heirship rules can significantly limit the freedom of the survivor spouse. Despite being the surviving spouse, they may not have full control over the distribution of the estate, as a portion of it must be reserved for the children. This restriction can affect the survivor spouse’s ability to manage or dispose of assets according to their own wishes.

Potential Disputes: Without a Will, there may be disagreements or disputes among family members regarding the distribution of the estate. This can lead to lengthy legal proceedings and increased costs.

Overall, dying intestate in France means that the distribution of your assets may not align with your preferences, and it can create uncertainties and potential conflicts.

Therefore, having a valid Will in place is highly advisable to ensure that your wishes are respected and your estate is distributed according to your intentions.

WHAT ARE RIGHTS OF THE SURVIVING SPOUSE IN THE ABSENCE OF A WILL AND IF YOU ARE A FRENCH RESIDENT WHEN YOU PASS AWAY?

In the absence of a Will in France, the default rule is that the law of the state in which the deceased had their habitual residence at the time of death will apply.

As explained above, if you reside in a foreign country, applying your foreign will or foreign law to distribute your assets in France can be quite complex.

If France is your habitual residence upon your death, your succession will be devolved “ab intestat.” (Death without a last will and testament.)

The rights of the surviving spouse will vary depending on the other heirs present in the succession:

• In the Presence of Descendants:

Descendants are reserved heirs, meaning they cannot be deprived of a portion of the deceased’s estate. However, the surviving spouse is not a reserved heir, except in the absence of descendants.

Distinction in the Presence of Children:

• In the presence of one or more children born to both the deceased and the surviving spouse:

The surviving spouse is entitled to either a quarter in full ownership or the entirety in usufruct over the assets existing at the time of death (Article 757 of the Civil Code). The surviving spouse has the freedom to choose the option they prefer and has a period of three months from the request of other heirs to make a decision. After this period, the surviving spouse will be deemed to have chosen usufruct (Article 758-3 of the Civil Code). The surviving spouse will also be deemed to have chosen usufruct if they pass away before making a decision.

• In the presence of one or more children solely from the deceased:

The surviving spouse no longer has the option to choose and is entitled to only a quarter in full ownership of the estate.

The surviving spouse also has specific rights regarding housing.

If the deceased has no descendants, a leaves a surviving spouse a further distinction must be made based on the family situation.

• Competition with Privileged Ascendants:

Privileged ascendants are the deceased’s parents. If both parents are alive at the time of death, each is entitled to a quarter (1/4) in full ownership of the estate.

The surviving spouse will inherit the other half of the existing assets.

If only one parent is alive, they will inherit a quarter (1/4) in full ownership of the estate, and the surviving spouse will inherit the remaining three-quarters (3/4) in full ownership (Article 757-1 paragraph 2 of the Civil Code).

When the deceased’s parents have passed away, the surviving spouse is entitled to inherit the entire estate. However, there is a small nuance to this statement: the presence of privileged collateral relatives.

• Competition with Privileged Collateral Relatives:

Privileged collateral heirs are the deceased’s siblings and their children.

In the presence of brothers and sisters (and in the absence of parents and descendants), the surviving spouse inherits the entirety of full ownership. However, half of the family assets revert to the brothers and sisters. If only grandparents remain, then the entirety of full ownership will revert to the surviving spouse.

THEREFORE, WHICH LAW CAN I APPLY TO MY SUCCESSION?

As mentioned earlier, to avoid the inconveniences outlined above, the 2012 European regulation reserves the possibility of choosing the law you want to apply to your succession. This is known as “professio juris”—recognizing the right of a party to choose the law that will govern their contract and in this case, the chosen law can be the state/country of which one has nationality.

Example: I am a French resident of Belgian nationality. I can decide that Belgian law will apply to my succession.

However, when the deceased had manifestly closer ties to another state than that of their main residence, the law applicable to the succession is that of that state.

WHAT ARE THE FORMS OF WILL?

Understanding Your Options.

Sealed Will: The sealed Will, although rarely used, offers the advantage of confidentiality. In this type of Will, the testator provides it to their notary in a sealed envelope, in the presence of two witnesses. The content remains known only to the testator, as the notary cannot verify its legal effectiveness. This lack of verification is a significant drawback of the sealed Will.

Authentic Will: The authentic Will, drafted by a notary in the presence of witnesses or a second notary, is considered the most secure option. The notary transcribes the Will as dictated by the testator, and it is then read aloud and signed by all parties involved. An authentic Will ensures compliance with legal requirements, minimizing the risk of challenges to its validity.

Holographic Will: The holographic Will, often the simplest and most cost-effective option, is a handwritten document signed and dated by the testator. While straightforward, it may be prone to disputes or even invalidation if not prepared with the guidance of a specialized lawyer.

In summary, while there are various forms of Wills available to accommodate different circumstances, the authentic Will stands out as the most reliable option for ensuring legal compliance and minimizing the risk of challenges to its validity. What ever form of will, it is very important that it includes the profession juris mentioned above.

IN WHICH CASES IS AN AUTHENTIC WILL OBLIGATORY?

• If the testator cannot write, or is no longer able to write (elderly or disabled, for example)

• If the testator wishes to deprive their surviving spouse of their life interest on the dwelling

• When one wishes to recognize a natural child whose existence was hidden, through Will

• If the testator can write in French but is deaf

• If the testator cannot speak or hear, read or write

WHICH PART OF MY ASSETS CAN I TRANSFER AS MY WILL?

You have the freedom to specify how your movable and immovable assets will be distributed upon your death. This includes various types of property and assets LOCATED IN FRANCE such as:

Real Estate: This includes properties such as houses, apartments, land, and any other immovable assets you own in France or abroad.

Bank Accounts: Funds held in bank accounts, savings accounts, investment accounts, and other financial institutions can be designated in your Will.

Personal Possessions: Items such as jewelry, artwork, vehicles, furniture, and other personal belongings can be included in your Will.

Investments: Stocks, bonds, mutual funds, and other investment instruments can be designated to specific beneficiaries in your Will.

Business Interests: If you own a business or hold shares in a company, you can specify how your interests in the business will be distributed among your beneficiaries.

Intellectual Property: Rights to patents, copyrights, trademarks, and other intellectual property can be addressed in your Will. Life Insurance Policies: Proceeds from life insurance policies can be designated to beneficiaries named in your Will.

Therefore, assets located in other countries may need to be addressed separately according to the laws of those countries.

IS IT POSSIBLE TO WRITE A WILL AS A COUPLE?

Under French law, a will cannot be made in the same act by two or more people. Therefore, a Will which is drawn up by a couple or drawn up by one person and signed by both (known as a joint Will) is void and cannot be applied.

Therefore, everyone should draw up their Will separately.

CAN ONE MODIFY A WILL?

The testator is free to revoke his provisions of last Will at any given time. The Will is always revocable through the simple desire of the person, who wrote it.

REVOKE LAST WILL

The revocation of the Will can be explicit (new subsequent Will or notarial act) or tacit (drafting of a Will incompatible with the previous one). The testator can also prevent the carrying out of a holographic Will, by destroying it.

ADD PROVISIONS

The testator must write an addendum known as “codicil” which must be dated and signed, in order to be valid.

If you have any questions or would like to discuss your estate planning needs further, please do not hesitate to contact me. I am here to assist you every step of the way.

HOW TO PROCEED?

To proceed with drafting your Will, we will begin by scheduling an appointment to discuss your specific personal situation in detail.

During this consultation, I will review together with you your assets, family dynamics, and any special considerations you may have regarding the distribution of your estate.

I will then provide personalized advice tailored to your unique circumstances and preferences.

This will include recommendations on how to structure your will to ensure that your wishes are clearly articulated and legally enforceable.

Additionally, I will explain any tax implications associated with your estate planning decisions and help you understand how various provisions in your will may impact the death duties tax etc…

HOW IS THE WILL REGISTERED AND WHERE IS IT KEPT ?

Once the Will is drafted and finalized, it must be registered with the central database of all Wills registered with a notary in France, located in Venelles.

The original document is then securely stored in the notary’s safe. This registration process ensures that the Will is officially recorded and stored in a secure location, providing legal proof of its existence and contents.

HOW IS THE WILL RETRIEVED?

In the event of the testator’s death, the notary responsible for handling the succession automatically accesses this central database in Venelles to verify the existence of any registered Wills.

This ensures that the Will is retrieved promptly and efficiently, facilitating the probate process and ensuring that the testator’s wishes are carried out according to the terms of the Will.

Copyright @ 2024 Carole VANGIONI. All rights reserved. This document is protected by copyright law. Maître Carole VANGIONI holds exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the original content.

Download the document here.

To contact Carole Vangioni to have your own wills written and recorded, we can refer you. Email us for more information.

A bientôt,