Must French court appoint will executor as per English Law?
John Kitching, a director of French Law Consultancy Limited, answers a reader query on English inheritance laws when living in France
Reader question: A friend took advantage of the 2015 EU regulation to leave his estate under English law to one beneficiary. The notaire dealing with his estate claims the matter must follow 'English procedure'. Thus he has applied to a French court to appoint an executor 'in accordance with English law.' Is this necessary?
Under the EU Succession Regulation, a person living in France or with assets in France can elect the law of their nationality to apply to their estate, as your English friend did.
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The notaire must therefore administer it in accordance with English law which, for example, allows freedom to leave assets to a surviving spouse on the first death, with children only to inherit on the second death.
The appointment of the executor and their authority is derived from the will, not a court order or grant of probate. If English law is elected and no executor is appointed in the will, then a beneficiary can act as such.
In the UK, a grant of probate is often obtained from the High Court in order to confirm the validity of the will and to confirm who the executors are.
However, this is limited to assets in the UK. If dealing with a UK will, notaires may request that a UK grant of probate be obtained for good measure.
Even so, where there are no UK assets that require a grant of probate, you can’t easily obtain one.
In those cases, notaires take a view as to whether to accept the will and the appointment of executors, perhaps together with an affidavit of law from a solicitor (certificat de coutume) explaining the validity of the will and the executor’s authority to act.
A notaire may, however, decide to seek French court approval of the will and executor’s appointment by application for an ordonnance from a tribunal judiciaire. This is quite technical and costly.
The notaire probably has good reason to make the application in your case and I am aware some advisers consider it to be always necessary, despite additional cost.
However, while it is certainly possible and correct, it is not something that is requested by most notaires in most circumstances.