Disinheritance Question

[chrisl]

Hello,

This a tricky situation, so any help is welcome.

Basically, I was disinherited. My father set up his French and English estate under English law, even though he was domiciled in France.

Now I know it is difficult to contest the English portion. But the French estate, i.e. his house, I think there is some leeway. The house was left to the tiny commune. But they have not received any notice of this from the English solicitor (my father died in July).

So question 1. What is the official name for the paperwork? And how long does it normally take for the solicitor to send to the commune?

Now talking to some people in France, it has emerged that the commune may refuse the house as they would have to pay a hefty chunk of tax. I have emailed the mayor to ask him (and the council) to see whether they would refuse the house. No answer yet.

So question 2. Is it likely they would refuse the house? If so, do I then get a notaire involved? Should I have one already?

Again, I know this is a complicated situation. Thank you!

[idun]

How much is the house worth? I ask as getting notaires involved will be costly IF this has to go to court.

You do need good legal advice from a notaire though.

[EuroTr@sh]

chrisl wrote the following post at 11/01/2021 23:08:

Now talking to some people in France, it has emerged that the commune may refuse the house as they would have to pay a hefty chunk of tax. I have emailed the mayor to ask him (and the council) to see whether they would refuse the house. No answer yet.

I am not sure this is correct.

I discussed with my notaire and also with the mayor the possibility of leaving my house to the commune, as an alterhative to leaving it to a charity (I have no close relatives), and inheritance tax was never mentioned. Certainly I got the impression none would be payable.

The commune may refuse it for other reasons, basically if it thinks the inheritance would not be of overall benefit, for instance if they have no good use for the property and it would cost them to repair/maintain it, or if the bequest comes with conditions such as turning the grounds into a public park or whatever. From what I remember the mayor and the notaire mentioning, all bequests to the commune are considered by the town council and a decision is made whether or not to accept them. The question and the decision will then be reported in the minutes of that meeting which most communes make publicly available, so if the council meeting minutes are published on the commune's website it would be a good idea to keep reading them, in case they are slow in contacting you. You would also find out if the issue had been discussed and held over the next meeting pending further info before a decision is reached.

There should already be a notaire involved because an English solicitor can't handle the succession of French property on his own. That may be the reason for the delay, if the English solicitor is liaising with a French notaire. I'm not sure getting a second notaire involved would help. Notaires are rule-followers and advice-givers, they don't take sides and they don't handle disputes. I imagine there are legal provisions for the process to be followed if the commune refuses the bequest. So if you want advice from a notaire, it seems logical to speak to the one that is dealing with this.

[DraytonBoy]

I've always thought that you couldn't disinherit children here with regard to property no matter whether the will was written under English law or not.

https://www.french-property.com/guides/france/finance-taxation/inheritance/rights/surviving-spouse#:~:text=Accordingly%2C%20under%20French%20law%20the,the%20estate%20of%20their%20deceased.&text=Only%20that%20part%20of%20the,of%20their%20jointly%20held%20assets.

[Alan Zoff]

I would speak to the Notaire anyway. I know my local Notaire will give quite a bit of free advice before commitment. Perhaps she's an exception.

[EuroTr@sh]

@DraytonBoy There was a thread all about this very recently

http://services.completefrance.com/forums/completefrance-forums/cs/forums/3680416/ShowPost.aspx

[betise]

Has the notaire told you that you were disinherited, or do you know this because you have seen a copy of the will.

I ask because my late mother drew up a handwritten will a long time ago in the UK, and then lodged the same will with her French notaire. The first notaire I saw seemed to think that the UK will was valid in France, but it was not the case, as it is only wills that were drawn up AFTER the introduction of the new laws that can be honoured. If the will predates the law changes, then French law will be applied, and children cannot be disinherited.

[nomoss]

Notaires may give free advice, but they are, as mentioned above, government officials, not practicing lawyers (avocats), although they may once have been so.

If you want reliable legal advice you have to pay for it. I'm sure that by searching you can find an avocat who can help you, even an english-speaking one if necessary.

The UK government has a list of English speaking lawyers in France accessible from  HERE

[mint]

Now that the OP has had some excellent answers, may I ask a quick question?

If an "English" will were made now, since Brexit, would the law about according to the will-maker's UK preference be honoured?

PS, can't log in as usual so using Opera on which I can log in. If I disappear for days from the forum, please don't assume that I have made my will and am giving up the ghost. Please notify Hoddy or Wooly to get me er... resurrected. Thanks

[idun]

https://www.capital.fr/votre-argent/reserve-hereditaire-1324417

This link should be live. It looks like the least you would get is half the house. You should be classed a s reserve hereditaire.

You need a notaire.

[EuroTr@sh]

Mint wrote:

If an "English" will were made now, since Brexit, would the law about according to the will-maker's UK preference be honoured?

Yes it would, it's not affected by Brexit.

The decision to give people the choice of which country's laws to use, was taken by (in this case) France.

I believe I'm correct in saying that the UK didn't sign up to this legislation in any case. So if you have property in the UK, you don't get a choice - UK law applies. But the UK can't prevent France, and the other EU countries which signed up (ie most of them) from offering you the choice.

[EuroTr@sh]

Nomoss wrote

"Notaires may give free advice, but they are, as mentioned above, government officials, not practicing lawyers (avocats)"

Well, notaires are specialists in family law, inheritance law etc. They know the rules (or a good notaire does) but they're impartial. They'll tell you what the law says and they'll advise you on your options, eg inheritance planning when you buy a property.

Avocats are the ones who will take on your case and represent you, plead on your behalf, try to find loopholes in the law etc.

[chrisl]

Thanks, everyone.

Yes, I have seen the wills. There's two: a French and English will, one for each estate.

I guess one last question I have is about the English solicitor, who does not act for me as I'm not a beneficiary. Does he work with a notaire in sorting out the paperwork  for the French estate? And is there a way to find out who?

[Alan Zoff]

Assuming both wills are valid in the respective countries, the English solicitor will have no real involvement with the French side of things, other than to establish the value to be reported for UK IHT purposes. (I assume that the French will does not appoint the executor of the English will as executor of that will, too, but I do not know to what extent French law would take notice of that in any event.)

Apart from a few specialist firms (mainly London based), English solicitors will normally say that they can't advise in relation to overseas law as Law Society qualifications and regulation will not apply.

[pomme]

mint wrote: If an "English" will were made now, since Brexit, would the law about according to the will-maker's UK preference be honoured?

It is worth reading this page for a brief summary:

from https://www.blevinsfranks.com/news/article/your-last-will-and-testament-france

It includes

1.It is important to note that, when drawing up wills in the UK, it is the practice to include a provision to automatically revoke all earlier wills. So if you make a French will, and subsequently change your UK one, make sure your solicitor knows about your French will so that he does not inadvertently revoke it, with quite unintended consequences.

and

2. The EU succession regulation 650/2012 (known as ‘Brussels IV’), which came into effect in August 2015, allows foreign nationals to opt, through a statement in their will, for the succession law of their country of nationality to apply on their death. So British expatriates can now avoid French succession law by electing for UK law to apply to their estate instead.

NOTE " through a statement in their will"

The will (in French) I wrote last year with help from a English/French notaire included a paragraph which mentioned

1. European Regulation (EU) n ° 650/2012 of July 4, 2012, relating to jurisdiction and applicable law of succession

2. choosing English law to govern the entire estate, and

3. excluding French law except for the validity of the will, which was drawn up in France where I am resident.

[Alan Zoff]

The use of standard clauses means the accidental revocation of the earlier will is not uncommon, although where I came across it (twice with English/Australian probates), the authorities were persuaded to take a commonsense line and accepted that the revocation was not intended in relation to the "foreign" will.

Better not to rely on that, of course!

[mint]

Curiouser and curiouser.....will need to gen up considerably. Thank you for all your great answers. Better than many an uninformed solicitor!