Is making a French will the right choice for multiple property owners?
John Kitching, a director of French Law Consultancy Limited, answers a reader query
Gifts of a French property can be liable to taxes
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Reader Question: We made English wills in 2016 but did not get around to doing a French will for our primary residence in Allier. Will EU law accept our choice of country of birth to govern our estate? We still own a UK flat, which we rent out. Should we gift our French home to our son and minor grandchildren, or make a French will with an election of English law despite the changes of 2021.
It sounds like you are a French resident and have a UK will that elects English law, being the law of your nationality.
This is a valid election of law. It does not have to be done in a French will, although it might make things easier. The UK will would need checking by an expert in case it presents other difficulties.
It sounds like you are aware of the changes made by France in 2021 to prevent children being disinherited by election of foreign law.
This would apply to you as French residents. That said, it does not sound as though you wish to disinherit children.
Do you really need an election of English law? It can make things more complicated. Discuss your wishes with a professional, depending on your reasons for electing English law.
Read more: French inheritance and foreign law wills: calls for change grow
In terms of gifting the French primary residence, perhaps consider a gift of the bare ownership so you retain use of the property until your death.
This is not a cheap option. There would be gift tax on any value inherited from a parent if it exceeds €100,000, and significant notaire fees, including stamp duty.
I would advise against trying to gift it to minors – a person must be legally appointed to accept the gift on their behalf, and the minor could face ongoing liabilities and costs.
Importantly, in the event of a sale, you would need a court order to sell on behalf of the minor. If the minor is a UK national and resident, that can be complicated and expensive.
Gifting your son the UK property may be an easier and cheaper option. Take specialist advice to decide what works best for you all.
Read more: Consider the tax implications of making a gift in France
