Who will inherit the French holiday home after father’s death?

Reader question: My parents own a holiday property in France and my father recently passed away. We are travelling to France and have an appointment with a notaire. Will it transfer to my mother (like with English law) or will an heirship rule be enforced? My father left everything to my mother but made no specific reference to the French property in his will. 

As you imply, under English law, your father would in most cases be free to pass ‘everything’ to your mother by will (though in certain circumstances children can legally challenge this if they relied on their deceased parent’s support and are left in financial hardship).

This is not the case in French law, which involves set heir’s portions. If you are the only child, then under French law you are entitled to half of the estate, and this cannot just be cancelled by a will. 

This would potentially include half of the house (or half of your father’s share in it if it was jointly owned with your mother). The remaining share would be able to go to your mother, as per the wishes expressed in the will. 

One exception - to be clarified - would be if your parents bought the house with a tontine clause, which states it passes in totality to the survivor of the couple as if they had always been its full owner.

The question then arises, as to whether French or English law should apply.

By virtue of the EU Succession Regulation (650/2012) because your father had his primary residence in England, English law may apply under the EU rules on succession, where the applicable law is generally that of the deceased’s habitual residence. 

On the other hand, if he did not explicitly say in his will that he wanted English law to apply to his whole estate, arguably the traditional rules of English law defer to French law for real estate located in France. 

Thus, you would be entitled to a ‘reserve’ share, at least of the French property.

The Connexion has been told that, by and large, despite this, French lawyers have been content to apply the ‘law of last place of residence’ in a strict sense despite this traditional rule.

However, if this interpretation is taken, then a 2021 French inheritance law applies, which states that notaires should offer any children who ‘lose out’ due to application of a foreign legal system lacking forced heir’s portions to claim a ‘compensatory levy’ out of any French-situated assets. 

English law is generally interpreted as lacking such rights, though there have been questions asked about whether this could change. 

The situation would therefore be similar, but in this case you would be asked if you wish to claim or not, as opposed to a share automatically going to you.

So, while a will can generally help clarify intentions, it cannot always override the children’s reserved portion.