It is important to note that by virtue of the French Civil Code, the French law will apply to French fixed assets. This means that French properties (land and buildings) will pass in accordance with the French mandatory rules of succession or the French rules of intestacy.
There is a marked difference between French and other Anglo-Saxon countries inheritance law. For example, in England, a surviving spouse will take a large proportion on an intestacy; the balance going to the children. This is not the case in France as French mandatory rules (which take precedence over testamentary freedom) institute reserved heirs - normally your children. Thus you cannot cut your children (which includes adopted children and those from previous relationships) out of your estate under French law. The age of the children is of no relevance. Step-children are not protected heirs.
If at the date of your death, you live in France, all of your worldwide assets (except land and buildings outside France) are subject to the rights of protected heirs. If you are not domiciled in France, this only applies to land and buildings in France.
The devolution of French land on death (when there is no Will) is therefore subject to the legal reserve as follows:
- where there is one child, that child must take one half of the French estate;
- where there are two children, two thirds of the estate is divided equally between them.
- where there are three or more children, three quarters are equally divided between them.
If a child predeceases leaving no children of his own, he is treated as not having existed, and his share is distributed between the surviving children of the testator.
If there are no children but one or both parents living, they also have a legal reserve but this was applicable up to late 2006. Pursuant to the law dated 23rd June 2006, which came into force after the 1st January 2007, parents no longer have a legal reserve.
This law has also created a droit de retour for the benefit of the parents (father and mother) on the properties which have been given to their children and who have then predeceased their parents.
Also, under the recent change in French succession law, a surviving spouse has been given greater rights than previously in an intestacy or where there are no children.
The remainder of the estate (which are not transmitted to the reserved heirs) is called the "quotité disponible" which passes under the terms of the Will.
These provisions can cause considerable difficulty to foreign purchasers. In particular where there is a dispute between children and parents, where a husband and wife have children by previous marriages or where the children are minors, especially young minors. In the latter case, children are vested in possession of French land by operation of law, even if they are minors, whereas, in English law for example, a minor cannot be vested in possession of land and, as such, there is no one in England authorised to sell on behalf of the minor. Attempt to sell the property by the surviving mother or father will consequently be frustrated, with potential serious financial repercussions. There are a number of ways to postpone having the property passing to the children and thereby overcoming sorne of the inheritance problems, but specialist legal advice must be sought (Ask a French lawyer).