If we don’t have children do we need a will?

My husband and I have no children. Does all property automatically pass to the surviving spouse? Is there any tax to pay? Do we need a will? Will a British will be recognised with Brexit?

The first step is to review the ownership structure of your property in France. Do you own en indivision or en tontine? Where did you get married and when? Did you adopt a French marriage contract by chance?

Assuming you own the property ‘in indivision’ (akin to the English tenancy in common) and in the absence of a (French or British) will, French intestacy law will govern your respective share of the French property on your death.

As you have no children, the deceased’s share would automatically go to the surviving spouse as to a minimum of 50%.

The remaining half of the deceased’s share would be divided between the deceased spouse’s surviving parent(s) – if any (as to 1/4 each). Thus, if your parents predecease you, your respective share would pass automatically to the surviving spouse under the French rules of intestacy.

It is however always advisable to make a will to preclude your respective parents from inheriting on your death if they are still alive, or to simply reiterate your wishes.

Spouses in France benefit from a full inheritance tax exemption, which means that there would be no inheritance tax to pay in France for any assets passing between you and your husband.

Brexit has no impact on the recognition of a British will in France. Recognition of foreign wills is governed by the 1961 Hague Convention which was signed by both France and the UK. Therefore, provided that your British will is valid under UK law, it would also be recognised in France.

However, if you would like your British will to govern your French assets, you should take specific advice from a French law specialist as some provisions which typically appear in UK wills can create a significant tax liability in France.