Making a will in France as a foreigner requires careful consideration of both French succession laws and international regulations. This comprehensive guide will walk you through the essential aspects of creating a legally valid will in France while protecting your heirs’ interests.
Understanding French Succession Laws
French inheritance law follows a rigid and specific approach to property distribution that differs radically from common law systems. The cornerstone of French succession law is the principle of “forced heirship” (réserve héréditaire), which illustrates the desire to protect the rights of certain heirs on the deceased’s estate by limiting the freedom of will. This system reflects a social and egalitarian conception of the family.
Basic Principles of French Inheritance Law
In France, in the presence of descendants or a surviving spouse, successions are guided by two central concepts, namely the forced heirship and the disposable portion. They define the respective shares of the hereditary reserve and of the freely attributable succession.
The forced heirship
The forced heirship is a major feature of French law. This provision of public policy requires the transmission of a minimum share of the deceased’s estate to protected heirs. It guarantees the free devolution of a part of the estate, whether the heirs agree to be called to the succession or not and regardless of the deceased’s wishes. Indeed, no act of the deceased, such as a will or a donation, can reduce this reserve in value.
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.
In case of non-compliance with these quotas by excessive liberalities or the assignment of more property to a third party by wills, 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
The disposable portion
The disposable portion refers to the share of the estate that the deceased can dispose of freely by will or donation. It complements the hereditary reserve and allows to favour a particular heir or let third parties benefit from the inheritance.
The proportions of the disposable portion also vary according to the number of reserved heirs :
- In the presence of a child : 50% of the estate.
- In the presence of two children : 1/3 of the estate.
- In the presence of three or more children : 1/4 of the estate.
When the deceased has no descendants or surviving spouse, the entire estate becomes freely available.
The EU Succession Regulation
Since the 17th of August 2015, EU Regulation No. 650/2012 has provided some flexibility for international succession, particularly for foreigners owning property in France :
- Choice of applicable law : Foreigners can choose to apply the inheritance law of their country of nationality rather than the French law. This choice must be explicitly stated in your will to be valid.
- Law of the habitual residence : In the absence of an explicit choice, the applicable law of an international succession will be that of the country of habitual residence of the deceased at the time of death.
- European Certificate of Succession : This document simplifies the recognition of inheritance rights in all Member States.
Legal Requirements for Making a Will in France
As stated in the Civil Code, making a will in France requires compliance with strict rules on form and validity. A will is a unilateral legal act that makes it possible to dispose of one’s estate by reason of death. In accordance with article 969 of Civil Code, it must be written. In practice, this means that the absence of a written will makes a will non-existent in French law.
Types of Wills Accepted in France
French law recognises four main forms of wills, three of which come from the Civil Code and a fourth is introduced by an international convention. Each type of will has specific characteristics and requirements.
Holographic Will (Testament Holographe)
The holographic will is the simplest and most used form in France. It must meet the following conditions to be valid:
- Handwriting : The will must be written by the testator’s hand, on any medium (paper, notebook, etc.) and with any type of ink.
- Writing in a comprehensible language : The will may be written in a foreign language mastered by the testator, provided that it can be translated if necessary.
- Date : The will must be dated by the testator, in order to guarantee the legal capacity of the testator at the time of writing and to indicate the chronology between different possible wills.
- Signature : The signature, affixed to the tester’s hand, is a key element that attests to their consent and will.
Legal basis : Article 970 of Civil Code
The mystical testament (Testament mystique)
Although rare, the mystical testament is an ancient form that guarantees a certain confidentiality :
- Secret drafting : The will is written by the testator or a third party and then signed and sealed by the testator.
- Stamp and deposit : It is delivered to the notary in a sealed envelope in the presence of two witnesses, and a deed of signature is drawn up to formalize the deposit.
Legal basis : Article 976 of Civil Code
Authentic Will (Testament Authentique)
The authentic will is the form with the highest probative force so it is particularly recommended to avoid dispute. The will is drawn up :
- by the notary himself or a third party he requires
- in front of two notaries or a notary and two witnesses of age
Then, the notary reads the contents of the will to the testator, who confirms his will and affixes his signature
Legal basis : Articles 971 to 975 of Civil Code
International Will
Introduced by the Washington Convention of October 26, 1973 (entered into force in France on December 1, 1994), the international will is recognized in many countries and offers uniformity of form, ideal for cross-border successions.
- Accessibility : This form of will is open to any testator, no extraneous element is required.
- Requirements : The will must be written, either by the testator himself or by a third party. The language used is indifferent as long as it is understandable or translatable.
- Procedure : The will is signed in the presence of a notary and two witnesses, and a certificate attesting to its conformity is issued.
Documentation Requirements
Making a will in France requires the submission of certain essential documents to ensure its validity and application. These documents include:
- Valid identification : Passport or national identity card to prove the identity of the tester.
- Proof of residence : Establishing the habitual place of residence is important for matters of international succession law since the law of the habitual residence can apply to succession.
- A marriage certificate (if any) : It is useful to define the rights of the surviving spouse under the matrimonial regime.
- A list of assets : A precise inventory of assets, such as real estate, furniture, bank accounts, investments, and their location ensure a clear distribution of assets.
Step-by-Step Process
1. Choose Your Will Type
The first step is to select the type of will that best suits your personal circumstances and estate goals. The four forms of wills recognised in France offer different benefits :
- Authentic Will : It offers the greatest legal certainty and the most security since it is drawn up in the presence of a notary and witnesses.
- Holographic will : It is a simpler option but one that can be more easily challenged, especially if its drafting or preservation raises doubts.
- International Will : It is the perfect form for cross-border estates, especially if you own property in multiple jurisdictions.
2. Gather Required Documentation
To draw up a will in accordance with French legal requirements, it is essential to gather all the required personal documents and to create a comprehensive inventory of your assets. A clear and accurate inventory facilitates the administration of your estate and avoids disputes between heirs.
3. Register Your Will
Registering your will with the Central File of Dispositions of Last Wills (Fichier Central des Dispositions de Dernières Volontés) is a highly recommended step. This file is managed by notaries and centralises information about wills deposited in France. Registration has several advantages:
- Ease of access : It guarantees that your will will be quickly found after your death.
- Increased security : It prevents accidental loss or destruction of the original document.
- Proof of validity : It strengthens the legitimacy of your will in case of contestation.
To proceed with the registration, a notary will forward a copy or key information of your will to the FCDDV. This is particularly recommended for foreigners, who may have assets spread across multiple jurisdictions.
Special Considerations for Foreigners
Choice of Law Provisions
Regulation (EU) No. 650/2012, which came into force on 17 August 2015, establishes uniform rules for international successions in EU member states. This regulation simplifies international succession considerably by designating a single law applicable to the entire succession, regardless of the nature or location of the property.
Choice by default
By default, the law applicable to a succession is the law of the State in which the deceased had his or her habitual residence at the time of his or her death. In other words, without choice of law, the law applicable to the inheritance is the French law.
Legal basis : Article 21 of Regulation EU No. 650/2012. This criterion best reflects the real links between the deceased and a particular legal system.
Choice of law (professio juris)
By an act of disposition due to death, such as a will, a foreigner or national can choose to subject his entire estate to the law of the State of his nationality, even if he resides elsewhere.
This choice must meet some specific requirements :
- An act or disposition due to death : The choice of law must be expressly stated in the will or any other official document.
- Nationality at the time of his choix or death : The law chosen must be that of the testator’s nationality at the time of his choice or at the time of death.
This mechanism of professio juris is particularly relevant for foreigners living in France, who wish to maintain a legal link with their country of origin.
Legal basis : Section 22 of Regulation EU No. 650/2012
Cross-border Inheritance Issues
International estates pose unique challenges due to the diversity of laws, tax requirements and administrative procedures in different jurisdictions :
- Multiple properties in different countries : The presence of real estate in multiple countries can lead to each country applying its own real estate laws and therefore, delays and conflicts between heirs regarding the management of assets.
- International bank accounts : Bank accounts located in different countries can be difficult to locate and integrate into the estate, especially if heirs do not have a precise inventory of assets.
- Each bank imposes its own procedures for unlocking funds, which can lengthen the succession process.
- Heirs will sometimes need to prove the validity of the will and obtain certified translations of legal documents to unlock the assets.
- Tax implications in various jurisdictions : Although France has signed bilateral tax treaties to avoid double taxation, heirs may be subject to inheritance taxes in several countries.
Tax Implications
The tax regime applicable to inheritance in France depends closely on the link of kinship between the deceased and the heirs, as well as the location of the goods.
Tax deductions based on kinship
The amount of inheritance that can be exempt from tax depends on the degree of kinship between the deceased and the heir :
Surviving spouses and partners of PACS : Total exemption from inheritance taxes.
Legal basis : Article 796-0 ter of the CGI
Children (or descendants) : A deduction of €100,000 is applied to the inheritance share of each child.
Legal basis : Article 779 I of the CGI
Brothers and sisters : A reduction of €15,932 is applied to the inheritance share of each sibling.
Legal basis : Article 779 II of the CGI
Other family heirs (nephews, nieces, etc.) : A reduction of €7,967 applies.
Unrelated heirs : no deductions are planned.
Progressive tax rates
Inheritance tax rates vary depending on the relationship and the amount inherited. They are calculated on the net share after deductions :
- Children or parents online directly : It is set to 5% to 45%.
- Brothers and sisters : It is set to 35% or 45%, depending on the share received.
- Other family members : It is set to 55%.
- Unrelated heirs : A flat rate of 60% applies.
Professional tax advice for complex international estates
Estates involving assets in multiple countries or heirs residing abroad can be tax-complex. In these cases, it is strongly recommended to consult a tax advisor or a specialized notary. They can optimize estate taxation through appropriate planning.
Common Pitfalls to Avoid
- Not registering your will with the Central Registry
- Failing to update your will after major life changes
- Overlooking forced heirship rules when applicable
- Not considering international tax implications
Frequently Asked Questions
- Can I write my will in English?
Yes, but it’s recommended to have an official French translation available to avoid potential interpretation issues. - Do I need a notaire to make a will in France?
While not mandatory for all types of wills, using a notaire is highly recommended to ensure legal compliance and validity. - How often should I update my will?
Review your will every 3-5 years or after significant life changes such as marriage, divorce, or property acquisition.
Next Steps
To ensure your will is legally valid and effectively protects your heirs’ interests:
- Consult with a qualified notaire specializing in international succession
- Seek professional tax advice for cross-border estate planning
- Register your will with the Central Will Registry
- Keep copies of all documentation in a secure location
Important: This guide provides general information about making a will in France. For specific advice tailored to your situation, consult a legal professional specializing in international succession law.
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