Holiday home owners

Foreign people living outside France but owning French holiday homes can also benefit from the regulation and bypass more restrictive French rules if they so wish, the French Justice Ministry confirmed to Connexion.

In the run-up to the regulation coming in there had been concerns that UK residents would not benefit due to the UK’s opt-out; however this proved unfounded. However, the ministry said that France will apply the regulation to Britons living in the UK with second homes in France.

For example, it said, the whole estate of an English person living in England when they die who owned French property but had not made a choice of law in a will, will, as far as France is concerned, by virtue of article 21 of the regulation, be subject to English law.

If the UK-resident Briton had chosen English law in a will to cover their whole estate, the same would apply, it added.

Even so, some lawyers expressed caution about relying on the default 'place of last residence' rule in the case of a British person who dies in the UK, saying that it remains better to make your choice absolutely clear in a will rather than assuming that UK legal rules will apply to your whole estate should you die as a UK resident.

Part of the confusion stemmed from the fact that the UK's formal legal position is that, because it did not sign up to the EU regulation, nothing has changed so the pre-existing rules still apply and these are that French law applies to French property.

Honorary avocat Gerard Barron said however, that as it is French notaires (or French courts in the event of a dispute) who deal with the passing on of the French property, the UK government's view is largely irrelevant. Nonetheless, he advises drafting a will clearly stating your law choice, preferably in French, and ideally lodged with a notaire to ensure it is found.

Lawyers often advise in any case having a separate French will where someone owns French property so as to avoid legal complications after death.

Mr Barron recommends that this French will should dispose only of the French estate and should invoke the regulation in order to choose UK law (for suggested wording see here).

Bearing in mind the positions expressed to us by the French ministry and leading notaires, this can be relied on – and this still holds despite Brexit as it is unrelated to the UK and it is France which opted in.

However, Mr Barron noted that the application of UK law to French holiday homes has not been tested by legal challenges (ie. from dissatisfied family members) and it is arguably not completely watertight until a case has gone all the way to France's top appeal court for a final view.

A leading international lawyer Edmond Jacoby, confirmed to Connexion that there had been no major issues, with a theoretical proviso about leaving children destitute.

In the meantime, Mr Barron said where UK law is not necessary because there is a suitable French legal mechanism to achieve an individual's wishes, people should continue to opt for that, not least because it will minimise complications for the notaire dealing with the succession who is trained in French law.

He said: "In the case of couples with children from previous relationships who want the surviving spouse to inherit to the exclusion of those children, the best option is still a tontine at the time of purchase."

The default 'place of last residence' rule means the regulation is of greatest interest to Britons who live in France or plan to move to France. Britons living in the UK should be able to rely on the default rule – however it is advisable to make your wishes with regard to the applicable law and how the property should be left explicit in a will.