Arrival of the EU regulation posed no problems

Following the implementation of the regulation on August 17, 2015, lawyers told The Connexion its arrival in France had been smooth, without unforeseen complications or controversies (note, however, the issues which have arisen due to the 2021 French law, see here).

In addition, as the regulation is not limited to nationalities that signed up to it, the fact that Britain has now left the EU has no impact said Edmond Jacoby, a notaire in Forbach, Moselle, experienced in international matters.

He said: "There are no particular difficulties with using the regulation, that's to say the only 'difficulty' is for notaires to inform themselves about foreign laws, but that's not related to the regulation as such, and in the past it also came up from time to time that we would have to check a foreign system's rules". (See below for more about how notaires prepared for the regulation and how they can check other countries' laws.)

Mr Jacoby said France has so far had no objections to British residents opting for UK law to apply to their whole estates and the same has applied to French residents of other 'third country' non-EU nationalities.

"There were American bases in Germany after the Second World War and some of those Americans stayed on in my region in the East of France. Some of them have designated the law of their American state and it has posed no difficulties."

He added: “It is true that Great Britain is not taking part in the regulation but even so the regulation, for those states applying it, is of a universal nature.

"So if a resident of London chooses English law, it’s not because the UK doesn’t recognise the regulation that we in France aren’t going to recognise the effectiveness of this choice for a holiday home in France.”

He confirmed that notaires are also applying the rule of 'last place of residence' to owners of French property who die living in the UK without having made a choice.

"As far as we're concerned, it's UK law in that case, whether the choice was made or not – in reality though we advise making a choice, because, say the British person later opts to live permanently in their French home it's best that they should have made their choice clear.

"It's a precautionary measure that fixes the person's wishes in place."

However, due to the UK opt out, the regulation does not have a universal effect in the UK. So where a Briton dies in France having made no choice in their will, French law will apply to any French real estate but the UK will not accept that this applies to any property they have in the UK.

Another notaire specialising in international matters, Lionel Galliez from Paris, also reported no significant issues related to the EU regulation.

He said: “All you have to remember is that the principle is that you choose one system of law for the whole of your estate.

"You can’t say part will be dealt with under French inheritance law and part under English law. But if you draw up a will saying English law will apply, then any French homes will equally be dealt with under English law.”

He was also not aware of any attempts to contest the choice of a person's national law in a will. “Our role is precisely to avoid things having to go to court – to give legal security and an absence of conflict."

He added: “In a situation where a British person has property in France and the UK, I advise preparing a will so as to be clear about the law which applies but also to have it drawn up in a team by a French notaire and a British solicitor, who can consult each other and iron out problems.”

Notaires used to dealing with British clients are likely to already have appropriate UK contacts, he said.

When it comes to such estates, some experts consider it is best to have two wills, one in French for French property and one in English for English property.

“It may simplify matters,” Mr Galliez said. “However in this case it is best for the notaire and solicitor to check that there is nothing in one will that will prevent the execution of the other.

“Another school of thought is to have a single will, which makes certain there are no contradictions, but it must be drawn up with the help of the two parties to ensure it is in a format that will be effective in the two countries.”

Mr Galliez said that all notaires should now be capable of drawing up a will making use of the EU regulation, however those with a certificat en droit international privé (a certificate in international private law, following specific training) are especially expert at this and are ideal for dealing with more complex estates. It is worth asking notaires directly if they have undertaken such training, he said.

It remains true that for a French notaire it is often simpler to make use of French legal strategies to achieve a client’s wishes rather than to choose English law.

In Mr Galliez' view, invoking the regulation does not necessarily make matters “much more complex” but he said it does tend to cost more.

“If it’s a question of an English person living in France, who only has possessions in France, they can, of course, opt to do everything under French law. Plenty of people have two children and just want each to inherit a half. In such cases French law works fine, even without a will.”

Problems have not been encountered with double nationality, he said.

“It simply gives more choice. For example an English/Australian person living in France has a choice of opting for Australian or English law.”

Mr Galliez said British people have, as expected, made use of the regulation to have more freedom than the French law allows. 

“For example, as French law requires set inheritance portions, if you want to give a lot more to one child than another – say three-quarters to one and a quarter to the other – you may make use of English law to make this possible. Or you might want to give more to the children of a second marriage than to those of the first, or to give more to your partner in a situation where you have a child from a first marriage. Others may also want to give to stepchildren."