For foreign residents in France, understanding the various types of wills available and their legal implications is crucial for effective estate planning. This comprehensive guide explores the different options and requirements for creating a valid will in France.
Introduction
France’s legal system offers several options for creating wills, each with its own requirements and advantages. For foreign residents, choosing the right type of will is essential to ensure their last wishes are properly executed and recognized both in France and internationally.
Types of Wills Available in France
1. Authentic Will (Testament Authentique)
The authentic will is the most formal and secure form of testament, thus offering the greatest probative force, making it the preferred choice to avoid any future challenge. This type of will offers several advantages :
- Maximum legal security and validity : The will is drawn up in front of two notaries or one notary and two witnesses of age. Being written under the supervision of a notary, it is extremely difficult to question its validity.
- Professional guidance throughout the process : The will is drawn up by the notary himself or a third party he requires. Then, the notary reads the contents of the will to the testator, who confirms his will and affixes his signature.The notary guides the tester through the process, ensuring optimal legal compliance.
- Automatic registration in the French Central Wills Registry : This type of will is registered ex officio in the Central File of Last Will Provisions, thus guaranteeing its location in case of death of the testator.
- Difficult to contest due to notary involvement : The authentic will is the most formal and difficult to contest, as it is drawn up under the supervision of a notary who has verified the testator’s ability and consent. It is authentic until the notary has verified the will himself.
Legal basis : Articles 971 to 975 of Civil Code
2. Holographic Will (Testament Olographe)
The holograph will is the simplest and most common form in France, as it can be written autonomously by the testator. This is a handwritten will that must be entirely written, dated, and signed by the testator. However, this simplicity comes with legal risks :
- Must be entirely handwritten : The will must be written entirely by hand by the testator. No machine or electronic process is allowed since only handwriting is allowed.
- More susceptible to legal challenges : Although simple, this type of will is more vulnerable to challenge, particularly regarding the authenticity of the writing and signature. In case of doubt, heirs must prove the will is genuine.
- Loss or damage of the will : The holographic will is likely to be lost or damaged if it is not properly preserved.
- May not be recognized in all countries
Legal basis : Articles 970 and 1373 of Civil Code
3. International Will
The international will is particularly relevant for foreigners living in France, as it’s recognized by all countries that have signed the Washington Convention of 1973. This type of will offers great flexibility and is tailored for international successions :
- Language : The will can be written in any language, as long as it is understandable or translatable. It makes it accessible to foreign testators.
- Requirements : The will must be written, either by the testator himself or by a third party. The will is signed in the presence of a notary and two witnesses, and a certificate attesting to its conformity is issued.
- International recognition : This will is recognised in the countries that are signatories to the Convention, which simplifies international successions.
- Flexibility in format and content : It is of a hybrid form since its writing, like that of the authentic will, can be the work of a third party or, like that of a holographic will, the testator himself. In addition, it is written by hand or any mechanical process.
Legal Requirements for International Wills in France
For an international will to be valid in France, it must meet several specific legal conditions, defined by the Washington Convention of 1973. These requirements guarantee the conformity of the will and its recognition in the countries that are signatories to the convention :
- Written form : The will can be handwritten or typed, allowing the testator to choose the most appropriate writing method as long as it is written. The most important thing is that the document is clearly expressed and understandable.
- Statement before witnesses and notaries : The testator must declare clearly, in front of two witnesses and a notary, that the document in question is their will. This declaration must be made explicitly and voluntarily.
- Signature of the testator : The testator must sign the will in the presence of both witnesses and the notary. The testator’s signature is essential to attest to his consent and the validity of the document. It must be affixed directly to the will, with no possibility of substitution.
- Signature of a conformity certificate : After the will is signed, all participants must sign a certificate stating that all the legal requirements of the Convention have been met.
Process of Making an International Will
The procedure for drawing up an international will in France follows a series of formal steps, in order to guarantee its validity both nationally and internationally :
- Prepare the will in your preferred language, either in writing or typed. It is important that the content of the will is clear and understandable. If necessary, a translation may be provided later to ensure its validity in other jurisdictions.
- Schedule an appointment with a French notary since his presence is mandatory to establish an international will in France.
- Arrange for two witnesses to be present since it must be signed in the presence of two adult and capable witnesses for the will to be valid.
- Sign the will and certificate in the presence of all parties
- Register the will with the French Central Wills Registry to facilitate access to the will after death,
Costs and Professional Services
The cost associated with creating a will in France depends on the type of will chosen. Each form of will has separate costs, depending on the formalities required and the need for professional intervention :
- Authentic Will : Being drawn up under the supervision of a notary, who ensures compliance with the law, this type of will usually has the highest costs.
- Fees : from €300 to €1,000
- Holographic Will : This form of will is free to write. However, if the testator chooses to register his or her will with the Central Registry of Last Wills, registration fees may apply.
- Registration fees : from €10 to €50
- International Will : The international will, which must be drawn up in the presence of a notary and two witnesses, has moderate costs.
- Fees : from €200 to €500
Recognition and Validity
All international wills created in France are recognized in all countries that have signed the Washington Convention. This convention harmonises the rules for the creation and recognition of international wills in the signatory countries. However, it is essential to take into account several elements :
Compatibility with forced heirship rules in France
In France, the law imposes strict rules on forced heirship. This provision of public policy protects the rights of reserve heirs since it requires the transmission of a minimum share of the deceased’s estate.
The reserve heirs are :
- The children or their descendants
- The surviving spouse (only in the absence of descendants)
The amount of this reserve is determined according to the number of reserve heirs :
- One child : 50% of the inheritance.
- Two children : 2/3 of the inheritance.
- Three or more children : 3/4 of the inheritance.
No act of the deceased, such as a will or a donation, can reduce this reserve in value. Indeed, a will, whether authentic or international, must respect these provisions.
In case of non-compliance with these quotas by excessive liberalities or a choice of law that contradicts these reservation rules, the heirs can bring an action for reduction, guaranteeing them at least a claim on the estate.
Legal basis : Article 912 of the Civil Code
Recognition in non-signatory countries
International wills created under the Washington Convention are valid in all countries that are signatories to the convention. However, in countries that are not signatories to the convention, recognition of the validity of the international will may be more complex :
- No recognition of the format or procedure for drawing up the international will
- Requirement of additional formalities from the local law for the will to be accepted
- Difference between the law applicable to the succession and the law choose in the will
In these cases, it may be necessary to use local expertise or have the will validated by a competent court.
Potential conflicts with existing wills in other jurisdictions
If several wills exist in different jurisdictions, an international will created in France could conflict with these other wills. This situation can create difficulties of recognition :
- A local will contradicts the intentions expressed in the international will
- Local rules of forced succession or right of reservation are not respected
A conflict between wills can result in a complex and expensive legal process to determine which one is applicable.
Common Pitfalls to Avoid
Foreign residents should be aware of several common mistakes:
- Not considering French forced heirship rules
- Creating multiple conflicting wills
- Failing to register the will properly
- Not updating the will after major life changes
Frequently Asked Questions
- Can I write my will in English?
Yes, international wills can be written in any language. However, a translation may be required for execution in France. - Do I need to use a French notaire?
For international and notarial wills, yes. A French notaire must be involved to ensure validity under French law. - What happens if I don’t make a will in France?
French intestacy laws will apply, which may not align with your wishes, especially regarding forced heirship rules.
Conclusion
Creating a will in France as a foreign resident requires careful consideration of various options and legal requirements. The international will often provide the best flexibility and legal recognition for foreign residents. Consulting with legal professionals familiar with French and international inheritance law is strongly recommended to ensure your wishes are properly documented and legally valid.
For personalized advice on creating a will in France, consult with a qualified notaire who specializes in international estate planning.
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