Charlotte Macdonald is an associate solicitor working in Stone King’s international and cross border team.
Charlotte answers legal and practical questions that are often asked by her clients in relation to France; whether that be buying or selling property in France, inheritance law, or how inheritance and capital gains tax are treated between the UK and France.
Here, she looks at some frequently asked questions about estate administration (succession) in France.
Who Is The Person Responsible For Administering The Estate in France?
This depends on which law applies. If Anglo-Welsh law applies, the appointed executor is in charge of the estate administration. If there are no executors, someone else will need to act – this is usually a beneficiary or relative, known as the administrator. Most lay executors/administrators choose to instruct a solicitor to help with the estate administration.
If French law applies, it is the beneficiaries (légataires) who are collectively responsible for administering the estate and signing relevant succession paperwork. You must instruct a French lawyer (notaire) to carry out the succession where the estate contains French real estate.
How Much Are The French Notaire’s Fees?
The notaire’s fees (frais de notaire) are set by the French state and are generally calculated as a percentage of the estate – your notaire will provide a fee estimate at the outset of the matter. Some notaires will charge an additional amount if the matter is particularly complex, which is often the case with cross-border estate administrations.
Since Brexit, the UK has no longer been part of the EU VAT area. This means that where a notaire’s client is UK resident, there will be no VAT charged on the notaire’s fees, except where the work relates to French real estate.
If you are not a fluent French speaker, you will be required to sign English translations of the key succession documents, to ensure that you fully understand the terms. The cost of translations is not included in the notaire’s fees.
What Is the French Equivalent To a UK Grant of Probate?
In the UK, where there is a Will, you will often need to obtain a grant of probate to gather in assets, or if there is no Will, a grant of letters of administration to confirm the administrator’s authority to administer the estate. In France, the beneficiaries are deemed to automatically inherit the estate at the time of death.
However, in order to take possession of the assets the beneficiary will often need their notaire to prepare the following succession documents:
- Power of attorney (procuration)
- Notarial deed (acte de notoriété)
- Inheritance tax return (déclaration de succession)
- Property deed (attestation de propriété)
- Deed of division (acte de partage)
The notarial deed is arguably the most important succession document. It includes details of the deceased person, the Will (if there is one) and establishes the beneficiaries of the estate and their respective shares. Banks and other institutions will generally require a copy of the notarial deed before releasing the assets.
Will I Need To Travel To France To Sign The Various Succession Documents?
No – your notaire can prepare a power of attorney (procuration), which will authorise another person to sign the succession documents on your behalf. This will usually be an employee in the notaire’s office. This is likely to be the only succession document you will need to actually sign.
The signing of your power of attorney must be witnessed. Your notaire will stipulate who needs to witness your signature – this will be by a notaire, a UK notary public or a solicitor. In light of Covid, some notaires are able to witness their client’s signatures via webcam – it is worth asking your notaire whether they are equipped to offer this service. If not, you will likely need to book an appointment with your local notary public or solicitor in the UK.
What Is The Procedure for Paying Inheritance Tax?
There may be French inheritance tax to pay if the person who died was domiciled in France at the time of death and/or they owned assets in France. In France, it is the beneficiaries who are responsible for paying the inheritance tax and any penalties for late payment.
If there is inheritance tax to pay, the notaire will need to prepare an inheritance tax return (déclaration de succession) – the deadline is six months if the person died in France, or 12 months if the person died outside of France.
Your cross-border solicitor will be able to advise on the Anglo/French Double taxation convention, which, if applied correctly, helps to prevent double taxation by allowing for some or all of the inheritance tax paid in France to be offset against tax paid in the UK (and vice versa).
How Long Will The French Estate Administration Take?
It can take between 9 – 18 months to complete the succession in France. It can take longer if the estate is particularly complex or if someone decides to challenge the Will.
Can Someone Challenge The Will?
A new French law came into force on 1st November 2021 (via an amendment to Article 913 Code Civil), which is expected to increase Will disputes for British expats in France.
This law applies in cases where the deceased and/or their children were an EU resident or EU national at the time of death. It stipulates that if children do not receive their reserved share under the Will (in accordance with French forced heirship rules), they will have the option to make a claim against their parent’s estate equal to the amount of their reserved share.
If applicable, the notaire will contact the children and explain to them that they have the option to make a claim against the estate. The children are not obliged to make a claim and can instead agree that the terms of the Will should be carried out.
This is a new law, and as such, there is still an element of uncertainty about how it will work in practice. It is anticipated that this law will be challenged at a European level because it is in direct conflict with the EU Succession Regulation. We can therefore expect a further period of delay and uncertainty.
If you think that you may be affected by this new law, or need help with an Anglo/French succession/estate administration, we can provide you with advice on your options.
For more information, please contact Charlotte Macdonald, Dan Harris, Raquel Ugalde or Emma Seaton at Stone King LLP by calling +44(0)1225 337599 or by emailing: [email protected].
Article written by Charlotte Macdonald and trainee solicitor Bryony Anning.
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