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Discussion Starter · #1 ·
This is a subject which should concern us all but gives me a headache every time my wife 22 years my junior brings it up.I have a house in France and 2 old farm houses in the Algarve.To complicate matters further 2 kids from a relationship in France with a English woman,all still living there.Also 3 grown up children in the Uk from a previous relationship and 2 children from my current marriage.

I assume I need a will from each country? Also am I right in assuming under French inheritance laws the French property goes to all the children and not the spouse?What about Portuguese inheritance laws? Even if I had drawn up English,French and Portuguese wills,I assume my wife and children in the event of my death would have to travel to France and Portugal to sign papers etc ?

And if I don't make any wills,what happens then?

I appreciate that some of these questions are difficult for anyone to answer,but surely they do affect us all on this forum to some extent,so I would appreciate any input or comments.
 

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Holy Smokes! Yours is a complicated one!

Can't comment on Portugal at all. But it would be wise to have wills for each country.

A UK will covers your UK property. Perhaps a Portuguese will covers Portuguese property or perhaps it will be similar to a French will, which has some standing but will remain secondary to French Succession Law which takes precedence.

Under French succession law (regardless of a will) the French estate is divided amongst the children, with the remaining spouse at the back of the line. And the percentage of your French estate all depends on the number of "blood" children you have. If you had one child, that child would have right to 1/3rd the estate on your passing. Two children = 2/3rds, three = 3/4s. Surviving spouse gets the remainder. If you pass away it's only your "blood" children that inherit, but that includes ALL your "blood" children whether they be in France, the UK or wherever in the world.

If your spouse passes before you, it is her "blood" children (and your 2 children from your current union) that have inheritance rights to your French estate.

There are numerous complicated ways to ensure the French property goes to the surviving spouse - buying "en tontine" is one of them, but you can only place the en-tontine clause in the contract when you purchase. And the "en-tontine" cluase prejudices against the heirs of the spouse who passes first. If you have substantial French property, correct planning is critical because going the wrong route could end up with some heirs paying the exhorbitant 60% inheritance taxes when proper planning would have exempted them.

There are other ways to plan - for example, changing your marriage state. It is complicated enough as it is without the further complications your extended family presents.

Your Portuguese property is excluded from French law so you might find it easier planning to leave the French property to your 7 heirs (plus spouse) and juggling a balancing act with the Portuguese estate amongst your heirs as well.

I suspect that Portugal is more closely aligned with English law as regards wills but you really should seek professional advice because French succession law is complicated and your situation is more complex than most.

Simply googling "French Succession Law" will yield plenty of information to ponder, but you'd do well to get professional advice (and I don't mean from a Notaire who most likely wouldn't fully comprehend your more complicated family situation).
 

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To add a bit to the reply from suninspired: A huge factor in all this is your legal residence at the time of your death. If you are living in France at the time of your death, French law takes precedent - except for real (i.e. immovable) property located outside France, where local law takes over.

Now, French law changed a few years back so that your spouse can inherit from you - however the spouse's share in cases where there are two or more children from a prior relationship is limited to 25% of the estate. There are also some rules now that protect the surviving spouse's right to remain in the family home, no matter who inherits it.

The fact of the matter is that you may not need (or want) to bother with a will in France. There are distinct limits to what you can do with a will, given the "forced inheritance" laws here. You may be able to make some adjustments to who gets what and in what form by consulting a notaire and drawing up a donation entre époux or adjusting your marital regime (though be advised, changing marital regimes is an expensive proposition).

However, if you're resident in the UK at the time of your death, your UK will handles all your assets except for the houses located outside the UK.
Cheers,
Bev
 

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Hi,
If you can confirm where you are, or expect to be, resident, I will have a go at your french and UK situation. There are certainly measures you can take to protect your present wife.
 

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Do NOT write different wills for each country. Remember the phrase 'last will & testament' ? It essentially means that the last willl to be made is the only valid one.

Are you British? I assume you are from the way you write. If so, you are likely to be UK domiciled and thus subject to UK Inheritance tax on worldwide assets.

You need ONE will set up to cover assets in different countries, as well as your personal arrangements. You need a lawyer who can deal with the rules in different countries - not someone who has been on a will writing course. Your situation is somplex , but can be dealt with. Your will can then be legally translated into other languages (& attested) where you own property.

If you don't sort out a proper will you will leave a huge headache for your family and I am sure you don't want that.

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Residence is certainly key. It's a while back, but I'm sure I remember my (British) parents being advised, on moving to France in 1995, that after two years in France they would be considered permanently resident for inheritance tax purposes - after which French law takes precedence over UK law.
 

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Discussion Starter · #7 ·
Do NOT write different wills for each country. Remember the phrase 'last will & testament' ? It essentially means that the last willl to be made is the only valid one.

Are you British? I assume you are from the way you write. If so, you are likely to be UK domiciled and thus subject to UK Inheritance tax on worldwide assets.

You need ONE will set up to cover assets in different countries, as well as your personal arrangements. You need a lawyer who can deal with the rules in different countries - not someone who has been on a will writing course. Your situation is somplex , but can be dealt with. Your will can then be legally translated into other languages (& attested) where you own property.

If you don't sort out a proper will you will leave a huge headache for your family and I am sure you don't want that.

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Thanks everyone for your input,I was surprised at so many detailed replies,so quick.Interesting thought about inheritance tax,will have to look further into that one.Yes I am British and since originally posting,I have done some Googling and would tend to agree with Ephabla that making only a English will with a good lawyer experienced in dealing with oversea estates is the only way to go.
 

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Residence is certainly key. It's a while back, but I'm sure I remember my (British) parents being advised, on moving to France in 1995, that after two years in France they would be considered permanently resident for inheritance tax purposes - after which French law takes precedence over UK law.
Not that simple. Domicile is a very strong concept under British law and cannot just change. It is different from residency.If your parents sever all ties with Britain they can apply for a change of domicile, but it would take more than a couple of years out of the UK for that to happen.

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Thanks everyone for your input,I was surprised at so many detailed replies,so quick.Interesting thought about inheritance tax,will have to look further into that one.Yes I am British and since originally posting,I have done some Googling and would tend to agree with Ephabla that making only a English will with a good lawyer experienced in dealing with oversea estates is the only way to go.
That is exactly what you need to do.

I advise expats living in the UAE on these issues on a professional basis and the rules are similar for all Brits living overseas.

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To add a bit to the reply from suninspired: A huge factor in all this is your legal residence at the time of your death. If you are living in France at the time of your death, French law takes precedent - except for real (i.e. immovable) property located outside France, where local law takes over.

Now, French law changed a few years back so that your spouse can inherit from you - however the spouse's share in cases where there are two or more children from a prior relationship is limited to 25% of the estate. There are also some rules now that protect the surviving spouse's right to remain in the family home, no matter who inherits it.

The fact of the matter is that you may not need (or want) to bother with a will in France. There are distinct limits to what you can do with a will, given the "forced inheritance" laws here. You may be able to make some adjustments to who gets what and in what form by consulting a notaire and drawing up a donation entre époux or adjusting your marital regime (though be advised, changing marital regimes is an expensive proposition).

However, if you're resident in the UK at the time of your death, your UK will handles all your assets except for the houses located outside the UK.
Cheers,
Bev
Bev,

Another question (hopefully a lot simpler)... American Citizen living in France with no real property dies in France. Wife (American citizen) living with him prior to death but adult son in America.. I assume the American laws prevail on assets (in accord with the will that is prepared in USA)?
 

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Bev,

Another question (hopefully a lot simpler)... American Citizen living in France with no real property dies in France. Wife (American citizen) living with him prior to death but adult son in America.. I assume the American laws prevail on assets (in accord with the will that is prepared in USA)?
Absolutely NOT. American citizen living in France dies. If they are tax resident in France, the estate falls under French inheritance law. Period. Only real property in the US would fall under US estate laws or be subject to any US will. (But be careful because estate law varies from state to state, too.)

It really doesn't matter a whit where the adult son is living.
Cheers,
Bev
 

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Absolutely NOT. American citizen living in France dies. If they are tax resident in France, the estate falls under French inheritance law. Period. Only real property in the US would fall under US estate laws or be subject to any US will. (But be careful because estate law varies from state to state, too.)

It really doesn't matter a whit where the adult son is living.
Cheers,
Bev
Guess I'll have to contact an atty in France to discuss... The Annuities, retirement, etc are probably ok since they are 100% joint survivor so wife will continue to get this income.. I need to check on the 401k funds as well as investments in the US (these may not be a problem as they will be in both wife and my name)....Thanks for the continued info...
 

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Not that simple. Domicile is a very strong concept under British law and cannot just change. It is different from residency.If your parents sever all ties with Britain they can apply for a change of domicile, but it would take more than a couple of years out of the UK for that to happen.

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Are you absolutely certain about that, when we're talking about French inheritance law? I realize the British laws have changed in the last few years, so the treaties involved may also have changed, but I have heard of some difficulties recently with the British government claiming their right to tax its citizens while the French contend they have precedence due to the "tax residency" of the person.

Some British friends of mine have been living outside Britain for a long time (20 years or more), but were planning on moving back to the UK on retirement because of the much higher French inheritance taxes and their preferences in how things be divided amongst their adult children (still living in the UK).

In any event, it's a very tricky area.
Cheers,
Bev
 

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Are you absolutely certain about that, when we're talking about French inheritance law? I realize the British laws have changed in the last few years, so the treaties involved may also have changed, but I have heard of some difficulties recently with the British government claiming their right to tax its citizens while the French contend they have precedence due to the "tax residency" of the person.

Some British friends of mine have been living outside Britain for a long time (20 years or more), but were planning on moving back to the UK on retirement because of the much higher French inheritance taxes and their preferences in how things be divided amongst their adult children (still living in the UK).

In any event, it's a very tricky area.
Cheers,
Bev
Bev,,
British? I'm an American... did I miss something?
 

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Guess I'll have to contact an atty in France to discuss... The Annuities, retirement, etc are probably ok since they are 100% joint survivor so wife will continue to get this income.. I need to check on the 401k funds as well as investments in the US (these may not be a problem as they will be in both wife and my name)....Thanks for the continued info...
The various retirement funds (I'm assuming here these are all based in the US) shouldn't fall into the estate at all. For French purposes, most of these funds are treated like "life insurance" - in fact, I've declared my 401K and IRA as "foreign life insurance contracts" for French tax purposes. It not only keeps them out of your estate, but under the right circumstances may also keep you from having to include them in any ISF (wealth tax) declaration.
Cheers,
Bev
 

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The various retirement funds (I'm assuming here these are all based in the US) shouldn't fall into the estate at all. For French purposes, most of these funds are treated like "life insurance" - in fact, I've declared my 401K and IRA as "foreign life insurance contracts" for French tax purposes. It not only keeps them out of your estate, but under the right circumstances may also keep you from having to include them in any ISF (wealth tax) declaration.
Cheers,
Bev
Thanks again, Bev.
 
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Not that simple. Domicile is a very strong concept under British law and cannot just change. It is different from residency.If your parents sever all ties with Britain they can apply for a change of domicile, but it would take more than a couple of years out of the UK for that to happen.

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Well unless the French notaries, the inheritance tax department of le Fisc, as well as our English lawyer got it completely wrong, that is not the advice we originally received; and when my parents both died with a few months of each other 8 years after moving to France, I once again tried to get the French authorities to accept their English wills, and it was refused. My English tax lawyer confirmed that all their assets, not only those in France, were covered by French law in our case.

They only had an English will.
 

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Do NOT write different wills for each country. Remember the phrase 'last will & testament' ? It essentially means that the last willl to be made is the only valid one.

Are you British? I assume you are from the way you write. If so, you are likely to be UK domiciled and thus subject to UK Inheritance tax on worldwide assets.

You need ONE will set up to cover assets in different countries, as well as your personal arrangements. You need a lawyer who can deal with the rules in different countries - not someone who has been on a will writing course. Your situation is somplex , but can be dealt with. Your will can then be legally translated into other languages (& attested) where you own property.

If you don't sort out a proper will you will leave a huge headache for your family and I am sure you don't want that.

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I don't mean to debate your advice given here, Elphaba, since it is quite obvious you have a far more detailed knowledge of the implications of French Succession Law on a Brit and my knowledge is patchy at best and dangerous at worst. The original poster has been given some excellent advice. His position is complicated and he definitely should seek professional advice IMHO.

Here is a passage from Marie Slavov, French Assets and Tax team, Blake Lapthorn Linnell attorneys in the UK written for Frenchentree.com which appears to offer a different opinion over the one will/two will dilemma:

(full text at Is your UK will valid in French law? from FrenchEntrée.com)

Is a UK will valid in France?

Regarding the form of the will, the Hague Convention of 5 October 1961 states that a will is valid if it has been drafted in accordance with either the law where the deceased signed it, the law of the deceased's citizenship, the law where the deceased was domiciled or ordinary resident when he/she signed it or when he/she died, and – in regard to land/property - the law where they are situated.

British owners have the option of having a separate French will to cover their French immoveable assets i.e. land, property. Alternatively, their UK will can cover these - providing that it complies with French legislation and the Civil Code.

However, we would recommend a separate will to deal with the French estate as UK wills tend to include words which may be difficult to interpret under French Law - such as trust. If the testator does not wish to set up a French will, we recommend they have a specific clause inserted in the UK will dealing with any French property.

Similarly, British people living in France on a permanent basis can have a French will to deal with all their assets. However, they may prefer to retain a UK will to cover their UK immoveable assets (i.e. land, property).
 

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Hi Enigma,
You say you are "British"--so am I , but I am not tax resident in Britain. Can you confirm that you are ,in fact , UK tax resident? No sensible answer can be attempted without knowing that.
 
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