Understanding different types of French wills and related EU regulations

Different types of will

It is possible to make a French will that is limited to assets in France – and then, for example, a US will to cover assets elsewhere.

The preparation of this kind of will is best done by a professional with international expertise since it may also require amendments to an existing US will.

A French will will normally deal with the allocation of the quotité disponible and allocate specific assets to specific beneficiaries. It may also, where there is a surviving spouse, give him or her the option to inherit the entire freely disposable share of the estate, or, instead, to forego taking any assets in full ownership but to take a usufruit over the whole estate.

A US will can deal with French assets but an official translation will be required and, as these wills do not usually respect the style and content of French wills, they may give rise to complications.

It is often better to deal with French assets in a French will.

Le fichier des testaments

Le fichier central des dispositions de dernières volontés (FCDDV), commonly known as le fichier des testaments, centralizes information about wills for the whole of France.

It does not contain actual wills but contains details of the testator and of the notaire with whom the will has been lodged. Whatever kind of will you make it can be lodged with the fichier and this is always consulted after a death.

Checking the fichier costs €18 and this can be done online at (click demandeur occasionnel). You will need to post a death certificate to do this.

Costs for lodging a will with a notaire and registering it with the FCDDV are around €100 and, while this is not obligatory, it is recommended so as to make sure that the will is found in time.

l. Holograph will (testament olographe)

This is the most common kind of will in France and it is obligatory that it is written entirely in the testator's own handwriting and that it is for the testator only and not made jointly as a couple.

It is signed and dated (day, date, year) and if there are several pages each page should be numbered and marked with your initials at the bottom.

This does not need to be done in front of a notaire and there is no need for witnesses.

It should be written, if possible, on a single sheet of paper (you can use both sides).

It can be written in English but it is usually better for it to be written in French, using the correct French legal expressions, which will avoid the need for translations and the risk of errors.

You can either do it entirely alone, or with advice from a notaire as to its contents and help preparing a model version. You can also ask a notaire to keep a copy in their office and to register it for you with the FCDDV. Once so registered, any notaire will in future be able to find out where the will is kept. This register is also connected to similar ones in Europe, so, for example, a French notaire will be able to locate the Belgian will of a Belgian person who has lived for years in France.

Alternatively, you may simply keep it at home in a place where it will be readily found if you should die. It is also advisable to let your close relatives know you have written this and where it is.

If you wish to make changes to a testament olographe, you could destroy it and write a new one. Alternatively, write a new one stating that it cancels the previous one.

2. Authentic will (testament authentique)

This is dictated to a notaire and written down by him or her in the presence of two independent, French-speaking witnesses or another notaire. It gives greater security.

If the testator is, for a valid reason such as illness, unable to go to the notaire's office, the notaire can visit them at home.

Usually the only requirement to be a witness is to be adult and to understand French. However a will of this kind can be made in front of an English-speaking notaire and be in English with English-speaking witnesses.

A married couple cannot be witnesses of the same will.

If you wish to have a testament authentique drawn up instead of writing your own by hand, there is a set fee for this of €135.83, plus some administrative fees, totaling under €200.

Notaire Pierre Lemée said the testament authentique is legally harder to contest after you die.

“You can also generally make it longer, because it is typed by the notaire or their assistant, and you can have several pages if you want.

“Another advantage is that there are fewer checks to be made after you have died, to make sure of its validity.

“If someone extremely elderly makes a testament olographe there could be questions asked about their soundness of mind; if I draft a testament authentique, and there are any doubts a doctor can be asked to attest that the person fully understands what they are doing.”

3. Secret will (testament mystique)

This is handed to the notaire in the presence of two witnesses, or another notaire, in a sealed envelope. A secret will in theory gives the flexibility of a holograph will and the security of an authentic will - however in practice they are rarely used.

4. International will (testament international)

This can be made in any language and does not have to be hand-written.

The testator declares that this is his or her will in front of two witnesses and a notaire and signs and dates it in front of everyone.

Based on an international convention, these were intended to allow people who were likely to travel and acquire assets in various countries (and who did not know in advance where they might finish their days) to execute a will that would be recognized as formally valid everywhere.

In practice not all countries ratified the convention and they are not widely used. France did ratify it but using this format does not in itself allow you to override local French rules on how you can leave your property.

How to invoke the 2015 EU inheritance regulation

If you want to make use of the EU inheritance regulation to choose the law of your nationality to apply to your whole estate instead of French inheritance law, this should be done in a will.

If you want to make use of the regulation, a testament olographe with suitable wording is one option for doing this. Appropriate opening wording for an American in France to include for these purposes might be as follows, says honorary avocat Gerard Barron (always bearing in mind that for peace of mind it is ideal to be assisted by a notaire):

Je soussigné né (soussignée née if you are a woman) le [insert date] à [insert place of birth], demeurant [current address] ai fait ainsi qu'il suit, mon testament : 

Je révoque tous testaments antérieurs [include this if you wish to annul all previous wills – if not, eg. because an American one is still operational for US property, do not include this wording and preferably take advice from a notaire who has a US solicitor contact].

Je déclare que je suis de nationalité américaine et né(e) en [insert precise country of birth].

Je déclare en conséquence et en vertu du règlement européen relatif à la compétence et à la loi applicable en matière de successions, choisir le droit américain pour régir l’ensemble de ma succession, écartant ainsi expressément le droit français sauf pour ce qui concerne la validité formelle du présent testament, rédigé entièrement de ma main en France où je demeure.

Such wording would then be followed by the bequests you wish to make. The will should then conclude with wording such as: Fait et écrit entièrement de ma main, à [place of signing will], ce [date].

Translation

I, the undersigned, born in.... living at.... have made my last will and testament as follows.

I revoke all previous wills [only include if relevant]. 

I declare that I am of American nationality and born in [...]. I declare that as a result of and by virtue of the European regulation relating to jurisdiction and applicable law in matters of succession, I choose [American] law to apply to the whole of my estate, deliberately setting aside French law apart from as concerns the formal validity of this present will, written entirely in my own handwriting in France where I live. Drawn up and written entirely in my own hand, at.... on ....

NOTE: If you are making a French will because you live in the US and have a property in France, then you would omit the words “en France où je demeure”.