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Will Brexit affect our inheritance choices?

Barbara Heslop of Heslop & Platt answers a reader query on the status of a UK-made will when applying for French residency post-Brexit.

Question

We made wills in the UK, naming our daughter as our beneficiary on the death of the survivor of us. My husband has two children from a previous marriage. We are now applying for residency in France so would like to know if our wills remain valid and whether Brexit will affect our choice?

Answer

Becoming resident in France will not invalidate your UK wills, but there are several points to consider.

Brexit has no effect: the 2012 EU Succession Regulation (Brussels IV) continues to apply to the administration of immovable property (house, apartment or land) in an EU member state and to the worldwide movable assets of an individual resident in an EU member state on death.

The effect of your existing UK wills would differ whether they were made before or after the regulation came into force on August 17 2015 and on whether there is an express election of, let’s say, English law.

While French law dictates all of your husband’s children should inherit from him, wills with an election of English law can circumvent this. But, under English law, your husband’s children could apply to the UK court if they can prove they will suffer financial hardship if their father has not made reasonable provision.

We recommend that you make new wills if your existing UK wills create a trust, as is often the case for UK wills, or if they do not contain an express election of the law of your nationality.

France treats trusts with suspicion and the appointment of executors who are not also beneficiaries may lead to a significant inheritance tax liability in France.

The simplest solution is likely to be a “testament olographe” (handwritten will) for each of you, with an express election of English law, naming the surviving spouse primary beneficiary and your daughter secondary beneficiary. They should not contain trust provisions and should name the surviving spouse as executor in the first instance.

This article was first published in response to a reader query in The Connexion - March 2021

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