Should I make a new will before 'full' Brexit?

John Kitching, a director of French Law Consultancy Limited, answers a reader query on making a will and inheritance laws after Brexit

2 December 2020
By Connexion journalist

Reader question: Is it best to make a new will before Brexit applies fully next year? Will inheritance laws change for expatriates then?

If you do not have a will, or your will does not reflect your current wishes, you should not delay in creating a new one. If you were to find that Brexit, or some other event, affects your intentions, you can easily and swiftly change your will again if you so wish.

Thankfully, while Brexit affects many areas, it should not have a negative effect on your will or inheritance planning.

The main unresolved difference is around legacies to UK charities, which, as things stand, become taxable (potentially at 60%) rather than taxexempt, as currently.

However, you will still be able to use your will to elect the law of your nationality (eg. English law) under the EU succession regulation.

If you have done so, France will still apply English law under the regulation, and the terms of your will shall be carried out, even if you do not leave your estate to children who would be obligatory (so-called reserved) heirs under French law.

Warning: Do not rely on a death variation of your will.

In the UK, beneficiaries can change your will by a deed of variation within two years of your death (the executor and anyone left worse off must agree).

However, this is a UK inheritance tax tool, not really a change to the will.

In France, the original beneficiaries would be taxed on their inheritance and the variation beneficiaries would then be taxed on receiving a gift from them.

Also note that you cannot elect UK inheritance tax, even if you elect English law.

If you are UK-resident with a French property, French inheritance tax applies to it.

If you are French-resident, French tax applies to your worldwide estate.

If you intend to make a new will, do not let Brexit stop or delay you.

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