British probate and residents in France

Earlier this year, my spouse died. He was English. In 2016 we moved to France and bought a house here. He only had a British will. My notaire asked me to obtain probate in the UK. Everything we have is in joint names, including bank accounts in UK and France, and land and property in France. My application was rejected because there is nothing to probate. Do you know how this should be dealt with? I can’t get the land and house into my name until succession is approved. S.W.

30 October 2019

I suggest you contact a UK solicitor who is a specialist in French law and with expertise of UK wills and EU succession regulation.

To advise with any clarity, it is necessary to see the will, its date and exact wording.

It appears the residence of the deceased is in France. We then need to ascertain if there is a valid choice of law (implied or expressed).

If we assume the will is valid and does not exclude assets in France, the next question is whether the will contains or implies a valid choice of law.

If not, French law applies based on habitual residence. French law would interpret a UK will in accordance with French law.

Any children would be entitled to their reserved share, and the will would apply to the free part of the estate (quotité disponible).

If there is a choice of law, the notaire can apply the will according to English law.

The notaire may require an affidavit from a UK solicitor to confirm the validity and effect of the will.

This would need to be translated with a certification and often an Apostille certificate of legalisation.

Regarding probate, it may be possible to ask a UK solicitor to sign a statutory declaration (translated into French) to confirm that:

  • a grant of probate is not always necessary, and does not apply to assets outside England and Wales; 
  • the authority for an executor to act arises out of the will itself, not out of the grant of probate;
  • and that a grant of probate cannot be issued unless there are assets in England and Wales in the deceased’s sole name requiring a grant. 


Question answered by John Kitching of Heslop & Platt answers a reader query

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