An overview

A frequent issue that comes up for non-French people who move to – or buy property in - France is what happens to the estate in the event of a death.

French laws governing succession are different from those in, for example, the UK, and are stricter. 

Their origins lie in the Code Napoléon, which has been followed by many European countries with the English-speaking countries being, in this respect, the odd ones out.

You may find the French rules rigid if you are used to the UK or US's greater freedom, however there are no plans to change the main principles which centre on protecting the guaranteed right of all children to inherit a portion of their parent's estate.

If they prefer, however, newcomers to France of all nationalities may opt in a will for the law of their nationality to apply to their whole estate, due to a 2012 EU regulation that came into force in 2015 (see here).

This regulation also has other repercussions due to a new default rule that the law of place of last residency applies to a person's whole estate if they do not make a choice in their will.

However, the EU regulation rules, up to now followed in France, were cast into doubt by a 2021 French law which seeks to enforce children's rights to a portion of the estate even where a foreign law would usually apply (see here).

The French 2021 law has been called into question by the European Commission, but it still stands on writing this guide. 

The following comments concern the basic rules as they stand in France, under a combination of French and EU law.

General rule: Concerning a person who dies 'habitually resident' in France their estate is subject to French succession law.

This includes both their moveable assets (shares, bank account money etc) and their French real estate.

That is, unless the person opted in a will for the law of their nationality to apply, in which case this replaces French law.

Rules before 2015 (for context): Prior to the EU regulation, French private international law distinguished between moveables and real estate, often accepting that the latter was passed on according to the law of the place where it was situated. However, French lawyers could, in certain circumstances, still consider a person's estate as a whole.

If their choices in leaving foreign real estate broke the French rules on how much of the whole estate should be left to whom, it was possible that an heir who “lost out” could seek to be compensated out of other assets that the French courts had control over (ie. the ones in France).

This was then further reinforced by the EU regulation, which means now that if a French resident has made no other choice in a will, French notaires and courts consider that French law applies to their whole estate, including real estate abroad.

There may be issues with recognition and enforcement of this in countries that did not sign up to the regulation, which in Europe included the UK, Ireland and Denmark.

This means that if a French resident leaves a UK property in a way that breaks French inheritance rules (eg. certain 'reserved' heirs lost out), French notaires cannot transfer real estate situated in the UK.

However, they could still seek to rectify this 'unfairness' in the way that any French-based property is shared out, especially if a 'wronged' heir was to point this out.

2021 law: If a French resident opts in a will for a foreign law to apply and it does not include set heirs' portions, the notaire is expected to invite the heirs to claim a 'compensatory levy' from French-situated estate, up to, as far as possible, the level of their French-law portion of the worldwide estate.

People who are resident outside of France

According to pre-2015 rules, people resident outside of France could only see their real estate in France be subject to French succession law. However since the EU regulation came into force, the default rule on the law of the country of last residence of the deceased comes into effect and French notaires will now apply foreign laws to French-based property.

However, where these lack set heirs' portions, the rule on a 'compensatory levy' comes into play if the deceased or one of their children was an EU citizen or resident.

Regardless of the EU regulation or the 2021 French law, notaires will still take account of any notarised French legal mechanisms you may have put in place. For example, a tontine clause made at the time of buying a French holiday home leaving the home to the survivor of a couple will still apply to this home even if the first member of the couple to dies as a UK resident.

Seeking professional advice

In this guide we look at the effects of French laws and ways in which potential problems can be avoided or minimised. However we can only provide a summary.

This guide does not replace the need to take professional advice on your individual case. Advice can be obtained from a notaire, avocat and/or, for example, a UK solicitor with expertise in French law.

If you buy French property the transaction will always be dealt with by a notaire, a French lawyer who is at the same time a professional with their own practice and an officer of the state. Their work is similar to that of a family solicitor, and is especially concerned with drawing up legally binding documents. 

Note that when buying property it is not necessarily the notaire's duty to advise you on the effects of the purchase and this includes inheritance issues, their role is to carry out the purchase formalities.

Many, but not all, notaires will advise on the best way to proceed in your particular case and on the effects of what you are doing but you cannot rely on this unless you specifically ask for advice and the notaire agrees to give it.

An avocat's role is similar to a British barrister's, providing legal expertise and speaking in court. 

Many specialise in criminal and civil litigation and may not be suitable to advise on inheritance, so look to check this if seeking out a professional for advice. An estate agent may also be able to point you in the right direction.

An avocat's input may be useful notably if you are concerned that your wishes might be contested. You can find English-speaking legal firms in France, and of course in the US or UK, who can advise.

Be aware of taxation

The issue of taxation on death must also be considered. Worldwide assets of residents are subject to French inheritance tax (UK or US tax may be payable on UK/US assets but deductible from the French tax bill). 

French real estate and certain other French assets of people living elsewhere when they die are subject to French inheritance tax.

The notaires have several helpful websites including their main portal: notaires.fr. Here you can click on the top right for English.