FIVE MISCONCEPTIONS ABOUT EXPATRIATE WILLS

You live abroad? Do you have some assets? Or perhaps you have children? Refresh your knowledge of succession. Beware of misconceptions about wills for expatriates.

1 – I own very few possessions. There’s no need to make a will.

FALSE ! Don’t wait until you’re older or have accumulated a substantial estate to protect your loved ones. If you have minor children, consider a guardianship will. It allows you to designate (with their consent) the person or persons who would take care of your children if a tragedy were to strike your family. This is even more essential if you’re living abroad. It will spare your loved ones the difficulties of a legal process conducted in a foreign country.

2 – The only thing that matters about my will is its content. 

FALSE. No matter where you are, when you draft your will, its form is essential for it to be valid and enforceable. In international situations (residence abroad, dual citizenship, real estate held outside France, etc.), you have additional options.

You can choose from among the types of wills that are valid in the countries in question. In addition to the types of wills recognized in France—the main ones being the holographic will (a will written entirely in your own handwriting) and the notarized will (a will drawn up by a notary).

For your will to take effect, it must also be found at the time of death. If you use a French notary, your last will and testament will be recorded in the Central Register of Last Wills and Testaments. Many countries with a notarial system have a similar database. Sixteen of these databases are even interconnected within a European network.

3 – If I die without having made a will, my personal property will be distributed in accordance with French law, and my real property will be distributed in accordance with the law of the country where it is located. 

FALSE. This rule was in effect prior to August 17, 2015, the date on which a major European regulation on succession took effect. This regulation established a single applicable law for settling international successions. A succession is settled under a single law.

From now on, unless the decedent has provided otherwise, the estate may be settled in accordance with the law of the decedent’s country of habitual residence. This applies to all assets. For example, if you die in Portugal, where you have been a resident for several years, without having made any specific arrangements, Your estate will be settled in accordance with Portuguese law. In some countries, however, the rules of private international law refer matters of succession to national law.

To maintain control, you can choose the law that will govern your estate—either the law of your state of residence or the law of your country of nationality. This designation is made either by will or by a document known as professio juris.

4 – If I don’t make a will, my children will inherit my assets. 

Maybe not true, if your estate is settled according to the law of the country where you last resided (see above). While this is true in France, where the reserved portion guarantees the rights of children, it is not the case everywhere. This is because the rules that determine who the heirs are and their order of priority in the succession The rules governing the distribution of an estate vary widely from one country to another.

5 – I can use the new European inheritance regulation to reduce the tax bill on my estate. 

Even more wrong. Admittedly, when living abroad, it is now possible to circumvent certain rules of French law. For example, by choosing English law to govern one’s estate. A French citizen living in England could circumvent the reserved portion (which does not exist in England) and bequeath the bulk of his or her estate to a third party, even if he or she has children.

However, the legatee will be required to pay the inheritance tax applicable to non-relatives, at a rate of 60 %, on assets located in France. In fact, the inheritance regulations address the civil aspects of inheritance, but under no circumstances do they address the tax aspects.

In Europe, 20 registries of last wills and testaments are interconnected

In 2005, notaries across Europe launched a European network of will registries (ARERT). It allows notaries to search a foreign registry through their national registry, facilitating the processing of expatriates’ wills and, consequently, the probate process.

20 countries, including France and Portugal are members of ARERT.

Wills for expatriates are not a matter to be taken lightly; today, you have the option to assert your rights in your new country of tax residence and, by definition, to exempt part or all of your estate from French law.