Does using ‘trustee' in French wills raise issues?

Reader Question: I understand from our notaire that use of the words “trust” or “trustee” in an English will can cause problems in France as the authorities potentially see these as tax-avoidance terms. Our English solicitor is adamant the terms must be used in our English will and recommends having an English will for our UK assets and a French will for our French assets. Given that there are lots of English wills that are treated every year by the French authorities, is my French notaire exaggerating the problem?

It is true that wills containing references to trusts or trustees can cause problems in France. 

Trusts do not exist under French law, and it can be difficult to implement them over French assets. Trusts are also subject to a specific, complex tax regime in France. 

Additionally, the existence of any trust linked to France must be reported to the tax authorities on creation and the value of its assets declared at the beginning of every year. 

This includes not only trusts over French assets, but also trusts where a settlor, trustee or beneficiary is French resident. French residents should therefore be particularly careful to not include trusts in any of their wills. 

For these reasons, where a will is applied in France, it is generally advisable to avoid any reference to trusts or trustees. 

This, in turn, avoids the need to explain the concept to a notaire and mitigates against the risk that a notaire may consider that a trust has been created in France. 

Read more: France’s ‘power of attorney’ equivalent

Are separate wills an option?

It would be possible to avoid these potential problems by having separate French and English wills. 

However, it is important to give this careful consideration, taking into account your own particular circumstances. Sometimes, even for French residents, it is expedient to have a single will, in either French or English form. 

For the avoidance of doubt, a valid English will can be applied in France, although it needs to be carefully drafted to ensure it can be implemented in France, without hampering a notaire’s understanding of its terms.

We would address these questions as part of advising you on your estate planning and wills.

Article written by Antonia Ridley-Hughes of Ashtons Legal.