If you die without an English or a French Will, your estate devolves under the French laws of intestacy. As such, it is advised to prepare a French Will, should you have whish to transfer the non-reserved share of your French assets (“quotité disponible”) to certain heirs.
There are different kind of Wills:
- The Holographic Will (“testament olographe”) which is written by the testator himself and kept in a safe place. No special formalities are necessary with the exception that it must be handwritten by the testator, signed and dated. Typed versions are not advised as they can be annulled by the Court for not meeting the requirements of the French Civil Code.
- An Authentic Will (“le testament authentique”) is a Will made in the presence of a notaire, and witnesses, or by two notaires. The last wishes of the Testator are dictated to the notaire and then transcribed. Following the reading of this Will to the Testator, the Will is dated and signed by the latter, then countersigned by the witnesses and the notaire(s).
- The Sealed Will (“le testament mystique”) is a Will prepared by the Testator and presented to the notaire in front of two witnesses, in a closed envelope, and stamped with a seal. It will not be opened until the death of the Testator.
The first one, i.e. ‘testament olographe’ does not have to be drafted by a French Notaire. As, such, this is the cheapest way to prepare a French Will as it just has to be in the testator’s own handwriting, be signed and dated by him. It should then be kept in a safe place. Please contact one of our French lawyers, should you need assistance to draft such a Will.
Alternatively, the French Will can be prepared by a Notaire but this will occur higher fees.
An important question is whether your UK Will is valid under French law, particularly if you have specifically mentioned your wishes concerning the bequest of your French property.
The answer to this question is debatable. Theoretically, your UK Will is valid by virtue of the Hague Convention of 5 October 1961 relating to the legal conflicts concerning testamentary arrangements (signed between France and the UK, among other countries). In fact, in the first article, this Convention allows the Testator to choose the law of several countries (according to his/her circumstances). For example, the law of his native country; the law of the country of domicile or usual residence; or even, with regard to fixed assets, the law of the country where these assets are placed.
Therefore, to sum up, according to the principles of the Hague Convention of 1961, a UK Will drawn up by a British citizen (or someone living in the UK) is theoretically valid in France.
However, some French succession rules are mandatory and cannot, under any circumstances, be overruled by a Will (even by a French Will). In other words, even if the UK Will is theoretically valid in France, its contents MUST comply with such rules.
Therefore, it is strongly advised to draw up a separate Will, written in French, to cover your French property. This process will prevent any errors of interpretation when a French notaire comes to execute the Will. Furthermore, the “executors” or “trustees” in charge of the administration of a UK Will only have limited powers over the French assets and it would be both expensive and inefficient to entrust the administration of French assets to them.
In addition, it is important to combine this step with a review of your UK Will, so that any conflict of interpretation may be avoided.
Finally, it is not necessary to systematically employ the services of a French notaire, because, as previously mentioned, a Holographic Will is completely valid (subject to the above-mentioned conditions relating to how it is drawn up). However, even if you decide to write such a Will, it is necessary to consult an experienced professional to ensure the Will is in line with French legal requirements. One of the recommended routes is to use a bilingual French lawyer (such as our French lawyers) who has expertise in French Law but also works closely with UK solicitors. Such French lawyers are able to understand your wishes and convert them as faithfully as possible into French law.
Furthermore, because these French lawyers work closely with UK solicitors, the drafting of your French Will can more easily be combined with updating your UK Will (or with any other legal requirements relating to your French and UK interests). Indeed, as mentioned above, it is important to consider various points of French, English and international law when your Wills are being prepared, to ensure that they will be completely valid. It is also important that the two Wills do not overlap, and that one does not revoke the other.