EU regulation offers the right to choose law of your nationality

People who live in France and are not French can choose to have the inheritance law of their nationality apply to the whole of their estate following an EU regulation that came into force in 2015.

This means, if you so choose, it is possible to avoid restrictive French inheritance rules (see here), which force parents to leave part of their estate to their children, and instead opt for more relaxed laws – such as those in the UK or many US states, which essentially allow you to leave your property to whomever you wish.

Note, however, the effects of a new 2021 French law, see pages here – and also the challenges to it.

This EU regulation allows for cases where the law of nationality is not that of an EU state so it can benefit, among others, Americans, Australians, Britons and South Africans who own property in France. 

It is important to note that these rules are unaffected by Brexit because the regulation is applied by France, which recognises its authority irrespective of the nationality of the owner of the property and the legal position of their country of origin.

Importantly, this regulation does NOT affect inheritance tax – it relates to your ability to leave your estate to whom you wish, contrary to standard French law.

The French inheritance tax that results from your choice is unchanged.

Possible benefits of using the regulation have to be weighed up against the fact that for many people French law does not pose a problem to their wishes (with the exception of more complex family situations, such as wanting to help a second spouse to the disadvantage of children from a previous marriage who would have rights under French law).

It should also be borne in mind that for French residents, and whenever inheritance concerns French real estate, a French notaire will be involved and he or she will be more familiar with the French rules than with other countries’ laws and retaining French law may simplify and speed matters up.

All of the other traditional French mechanisms for inheritance planning discussed in this guide remain in place and in some cases may even be preferable, depending on what you are seeking to achieve.

If in doubt about the best option, you may wish to consult a notaire or avocat with experience in working with expatriates living in France.

The UK, Ireland and Denmark opted out of the regulation with regard to property on their soil but France is included as are all of the other EU states.

The Council of the EU gave final approval in June, 2012 to what is officially called the European Succession Regulation No.650/2012 (also called by lawyers ‘Brussels IV’). It came into action in August 2015.

Default rule

Aimed at simplifying cross-border inheritance matters, it also includes a new default rule: Where no choice of law has been expressed then the law of the country of last residence of the deceased applies to their whole estate. 

This latter rule means that, for example, the French will automatically assume that English law applies to the estate of a person who dies resident in England, even if they did not make this choice of law in their will.

Note however, that the right for people to choose in a will the law of their nationality will also be respected by French lawyers with regard to French property belonging to foreign nationals who live outside France.

For example, if you are English and live in America and own property in France, you can also opt for English law to apply to your estate, in your will, and this will be applied by notaires to your French property.

There is one proviso to the 'default' rule stated above, to the effect that if where it is "clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected" to a different state from the one where he or she was living, then that other country's law will apply.

This might be the case, for example, where someone had only very recently moved.

Note that which countries' courts have ‘jurisdiction’ over the succession does not necessarily match the country of the law that will apply.

While the regulation allows for cases where there can be exceptions to this, the general principle is that the courts of the country where the deceased lived have jurisdiction to deal with the whole estate.

As stated, it is important to note that inheritance tax does not change. For example, a British person living in France can opt under the regulation for UK law to govern their estate and thus leave their French home to a friend rather than their child (this is not possible under French inheritance law) – but that friend would still be subject to 60% French inheritance tax.

Are binational French people able to adopt the EU regulation? See here (and below).

How to make your legal choice known?

Residents in France can make a will – including a clause stating that they want UK inheritance law to apply to their whole estate (see here).

It will often be practical for the will in question to be a French format will and to be in French, thus avoiding the need for translation and making sure it is easily recognisable as a valid will to French lawyers.

However the request could be made in an English-format will or a testament olographe in English (see here).

If you are a Briton resident in the UK and owning French property and wish to make a choice of your law of nationality, then hon. avocat Gerard Barron recommends you follow the same procedure for your French property.

"The British executors should be informed that there is a separate French will to deal with French real estate," he said.

"The French will – which does not have to be filed with a notaire to be valid, although for practical purposes that is advisable – should expressly say that it does not revoke any previous

English will (except possibly in respect of French property) and that it will not be revoked by any future English will unless expressly stipulated to the contrary."

However, there are other schools of thought among experts, including having just one will for all your estate in the language and format of the country you live in.

If in doubt, take advice from a notaire experienced in international successions or a UK solicitor with knowledge of French law.

Which law should Britons invoke?

A council of the EU spokesman said that for a Briton choosing the law of their nationality, using the term 'UK law' would be appropriate in the will, as the UK is the state as recognised by the EU.

Which law out of English, Scottish or Northern Irish is appropriate would then be decided when the succession is dealt with, on the basis of rules set out in article 28 of the regulation (which include a test relating to which country the deceased had the closest connection to).

However there is nothing to stop you aiding the process by specifying you were born / brought up / lived in a certain country, the spokesman said.

Franco-British honorary avocat Gerard Barron said there is no harm in making the choice explicit eg. by stating 'Scottish law', where the relevant law is in no doubt.

Note that while English and Northern Irish laws do not force you to leave set amounts to certain relatives, Scottish law requires you to leave a portion of moveable assets to a spouse and children.

English law does, however, allow the possibility – although this is very rarely invoked – for people who think they have been unfairly left without proper provision for maintenance, education or advancement in life to take legal action to seek a share.

How are non-EU nationalities impacted?

The regulation also applies to all, including non-EU, nationalities – so for example, an American in France can opt for the law of his or her US state.

The French Justice Ministry said it would also apply the regulation strictly in the case of people of other nationalities who live outside France.

A spokesman said: “The nature of the regulation is universal and its article 20 states that ‘any law designated by this regulation applies even if this law is not one of an EU member state’."

He said it follows that, for example, the law of a given US state will apply to the inheritance of an American who is a permanent resident of that US state, including for property in France.

This is due to article 21 of the EU regulation attributing the competency to govern the whole of the succession to the law of the country of residence of the deceased if he or she had not made a different choice.

To give another example, the whole estate of a Belgian or French person who is living in England when they die will be governed by English law, the Justice Ministry spokesman said.

Is French law imposed upon those with dual nationality?

Q. I recently was granted French nationality as I applied partly with a view to protecting my rights after Brexit, and so now have dual British-French nationality. I live in France. Can I still opt for British law via the regulation or will France insist that French law much apply to my estate now?

Prior to the regulation coming in there were some concerns about this as in most situations where nationality is concerned France sees a person with dual French and another nationality as simply being French. 

However this concern proved to be unfounded. In fact this situation is specifically provided for by article 22 of the regulation, which states: “A person possessing multiple nationalities may choose the law of any of the states whose nationality he / she possesses at the time of making the choice or at the time of death”.

This rule has been respected in France and so in the vast majority of cases there should be no problem with this. Lawyers think it could only be subject to a (theoretical) legal challenge (eg. by one of your children who did not receive the share provided for in French law) in exceptional circumstances and we are not aware of any cases where this has occurred.

Why the UK opted out of the regulation

Former UK Justice Minister Lord McNally said the UK opted out due to potential legal complications, for example, the application of French inheritance rules to property in the UK should French people be allowed to opt for French law to apply to their whole estates.

For example, a house given as a lifetime gift to a charity may later be found to have broken the French rules on children’s portions. He also said that French law could impede the usual 'efficient' administrative procedures on death in the UK, for example for dealing with creditors to the estate