A French estate is managed very differently to one in England. For example, there is French procedure equivalent to a UK Grant of Probate. Under articles 718 to 892 of the French Code civil, French law governs the administration of your French and worldwide estate if you die with a French domicile. If you die domiciled in England French law only applies to the administration of your French immeubles.

Only your reserved or other heirs can deal with the administration of your French immeubles which usually include preparing official French language documents such as: a dépôt de testament; an intitulé d’ inventaire sous seing privé et requête; an acte de notoriété après décès; a certificat de propriété; a déclaration d’acompte; a déclaration de succession; an acte de licitation, an expertise and an attestation notariée immobilière. Your English executors cannot deal with any of these formalities. It is normal procedure for your reserved or other heirs to sign a French Power of Attorney (procuration) authorising a notaire to deal with all the formalities normally involved. This document does not need to be executed or witnessed in France by the reserved or other heirs but can be signed locally at their place of abode in England or elsewhere. If as recommended the procuration also appoints a bilingual legal representative in England a contact can be established in a common task within the context of two very different legal systems. Moreover misunderstandings, which are a constant and dangerous feature of communication between the English layman and the notaire - neither of whom is fluent in the legal niceties of each other’s language - can be avoided.

  1. Necessary documents/information
  2. Much delay and expense will be avoided if all the documents/information necessary to wind up your French estate cannot easily be located when you die. For example legal genealogists may be necessary to trace all your reserved or other heirs throughout the world. Some can turn even the most unpromising leads into a successful outcome. For example one genealogist was recently asked if there was any hope of locating a person of illegitimate birth called John Smith. No date of birth or former address could be provided. Notwithstanding this through the systematic use of public records the genealogists were able to locate his whereabouts within 2 weeks.

    Various documents must be formally translated from English into French by a person approved by the French authorities, many of whom insist on an official translator (traducteur juré) based in France.Their fees can be very high and translations are not always 100% accurate. To avoid some of these costs the French authorities may accept translations made by an English Notary Public or some other lawyer in England supported by an affidavit or certified as to accuracy and faithful translation. Whoever translates cannot rely on a photocopy or faxed copy of the document to be translated unless that document is itself authenticated or certified to be a true copy of the original.

    Some French authorities insist that some or all documents are also ‘notarised’ by a Notary Public in England who vouches for the authenticity of the document as a whole. Sometimes the notarised document must also be ‘legalised’ meaning that it must be sent to the Foreign and Commonwealth Office (Legal Section) in London who affix the Hague Apostille

    Some French authorities also insist that certain English documents are accompanied by a French language certificat de coutume (affidavit or legal opinion of English law) which explains the rules applicable to an English document which is to be used in France. For example if an English will is relied on a notaire may require a certificat de coutume prepared by a person knowledgable in French and English law to confirm that the document is lawful in England. If the deceased leaves no French immeubles but only French meubles the certificat de coutume must persuade the notaire that the English executors have powers under English law to call in, sell and distribute these assets. The repatriation of a French-registered car to England is frequently dealt with by a certificat de coutume which provides for devolution under English law . It is always best to submit a certificat de coutume to a notaire in draft form before it is finally executed. Its acceptance depends in no small measure on the notaire’s knowledge (if any) of English law. A certificat de coutume does not need to be sworn or in the form of a Statutory Declaration.

    1. If you have made a valid French will the French authorities will require:
      • If you die domiciled in France a photocopy of your death certificate (sometimes a copy of your birth certificate and passport also). A French death certificate (acte de décès) never shows the cause of death. This can cause problems if you wish your body to be repatriated to England. If you die domiciled in England a official (sealed certified) copy of your death certificate (sometimes a copy of your birth certificate and passport also) must be produced and translated into French.
      • Your original French will. Even if a thorough search of your personal papers does not reveal a French will the notaire should be instructed to confirm in writing that neither he nor the French authorities have any record of you making a French will.
      • A full photocopy copy of the registered title deeds to your French immeubles.
      • Photocopies of the passports, birth and marriage certificates of your reserved or other heirs translated into French together with written details of their full current private postal addresses and occupation (Article 5 of Décret 71-941 du 26 novembre 1971).
    2. If you have not made a valid French will the French authorities will require:
      • If you die domiciled in France a photocopy of your death certificate (sometimes a copy of your birth certificate and passport also). A French death certificate (acte de décès) never shows the cause of death. This can cause problems if you wish your body to be repatriated to England. If you die domiciled in England an official (sealed certified) copy of your death certificate (sometimes a copy of your birth certificate and passport also) must be produced and translated into French.
      • A full photocopy copy of the registered title deeds to your French immeubles.
      • An official (sealed certified) copy of your English will.
      • An official (sealed certified) copy of your UK Grant of Probate or Letters of Administration.
      • Photocopies of the passports, birth and marriage certificates of your reserved or other heirs translated into French together with written details of their full current private postal addresses and occupation (Article 5 of Décret 71-941 du 26 novembre 1971).
  3. French procedure
    1. Once the notaire has all the documents he needs he will usually prepare:

    2. The acte de notoriété après décès and the intitulé d’inventaire
    3. These documents describe the assets and liabilities of your estate and the title of each reserved or other heir to the assets. The French authorities may insist that these documents are signed and certified by 2 people who knew but are not related to the deceased. Some authorities will however accept a certificate from an English Solicitor (dealing with the winding up of your English estate) confirming who your reserved and other heirs are.

    4. The declaration de succession
    5. This document discloses the terms of your will; full état civil details of all your reserved or other heirs; any lifetime gifts made by you and a list of all your French estate with an estimated or actual value. Unless there is proof to the contrary, personal chattels are deemed to be of a value equal to 5% of the total of all your other French estate. All debts in existence at the date of your death may generally be deducted. The declaration de succession must be completed, signed and filed by your reserved or other heirs - or on their behalf by their French attorney - with the fisc within 6 months if you died in France (12 months if you died elsewhere). If any (self assessed) French IHT due is not paid to the fisc within these time limits your reserved or other heirs may be liable for a surcharge and monthly interest (0.75%) on the unpaid tax. Under CGI art 1717 and annex 111 and arts 396 to 404 G and D French IHT may in some cases be paid in instalments over 5 or even 10 years (subject inter alia to the fisc taking a charge over your French immeubles). Your French estate may also be blocked until a receipt for French IHT can be produced. Your reserved or other heirs should keep a copy of the déclaration for at least 10 years.

      No declaration de succession must be filed if value of your French estate is currently less than FRF 10,000 and you only leave reserved heirs and /or a surviving spouse.

    6. The attestation notariale immobilière
    7. If your French estate comprises French immeubles the notaire must prepare and file an attestation notariale immobilière with the appropriate French Land Registry (bureau des hypothèques). Once this document is registered your reserved or other heirs can sell or otherwise dispose of the French immeubles.

    8. Sealing premises (apposition des scellés)
    9. Any person claiming to have an interest in your French estate (to include the local Mayor or Police Officer) may ask the registrar (greffe) of the local Tribunal d’Instance to ‘seal’ your French immeubles. The object of this procedure is to protect your property against removal by your reerved heirs who obtained saisine (see.) when you died.

  4. How English procedures can lead to a serious conflict

    Paragraph 30 (1) (a) of the 1987 English Non-Contentious Probate Rules (‘NCPR’) provides that if you die domiciled outside England a UK Grant of Probate can be issued to your English Executor. If you have no English Executor, NCPR para 30 (1) (b) provides the administration of your estate can be entrusted to “the person beneficially entitled to the estate by the court having jurisdiction at the place where the deceased died domiciled.” Paras 3 (3)(a)(i) and (ii) state that probate of any will which is admissible to proof may be granted to the executor named therein either if the will is in the English language; or if the will describes the duties of “a named person in terms sufficient to constitute him executor according to the tenor of the will “ The most usual course adopted in cases where a person dies domiciled in France is to proceed under NCPR 30 (1) (a) or (b), the entitlement of the applicant for the grant being supported by a certificat de coutume.

    The facts of the two cases detailed below explain why I suggested in an article published by the Solicitors Journal on 28 February 2020 that NCPR paras 30 (3)(a) (i) and (ii) should be amended or even suppressed. An important factor to remember is that under C civ arts 1025 and 1026 you may nominate one or more exécuteurs testamentaires and vest in them on your death all or part only of your personal estate which determines at the expiration of one year and a day from the date of your death. Subject to any such provision ownership of all your French estate vests automatically in your reserved or chosen heirs.

    1. The case of Miss Taken (‘A’), Miss Fortune (‘B’) and Miss Chief (‘C’)
    2. A died domiciled in France leaving personalty (but no realty) situated both in France and England. She was survived by her lawful daughter B. A had made a will in the English language which was valid under French law but in form not valid under English law. The will contained the words “I designate as executor of my will Mr X of (a French address)” and left the whole of her estate to her friend C. As this booklet has already explained, the gift to C could only take effect subject to B’s right to inherit one half of her mother’s French estate.

      Despite the above and in order to deal with A’s assets in England, her English Solicitors made an application for a UK Grant of Probate to be issued to Mr X under NCPR para 30(1) (a) (i). The UK authorities ignored the fact that the papers leading to the Grant were lodged considerably more than a year and a day after Mr A’s death. The affidavit of French law prepared by a notaire made no mention of the fact that Mr X had by then lost all entitlement so to describe himself, or that at no time had he any property vested in him. It followed therefore that Mr X’s English executors’ oath stating that he was “the executor named therein” was incorrect as regards A’ s French estate.

    3. The case of Miss Ingit (‘D’)and Miss T Eyed (‘E’)
    4. The situation in this case was not dissimilar to the above case. Miss D died with a French domicile having made a French testament holograph in French and a codicil in English. She made certain legacies and validly left residue to her sister (E) as D left no reserved heirs. In her will she named two persons (‘Mr Y’ and ‘Mrs Z’) as her exécuteurs testamentaires - who had no powers of administration - and in any event their right to act in that office had expired in the previous year. Nevertheless D’s English Solicitors applied for a UK Grant in favour of Mr Y and Mrs Z under NCPR 30 (3) (a) (ii).

      What makes this case particularly unfortunate is that the English Power of Attorney to Mr Y and Mrs Z was sent in draft form to the firm of notaires then acting in France who had the document translated into French. They therefore had full comprehension of the contents. They had shortly after D’s death prepared and sent to England for execution by E a power enabling persons in France to administer D’s estate on her behalf. This was a correct procedure, the exécuteurs testamentaires taking no part whatsoever in the administration of the estate. Nevertheless the French notaires allowed Mr Y and Mrs Z to execute the English power of attorney in the full knowledge that they had no authority so to do and that even if they had such authority, it had by then expired.

    One must assume in these cases that applications under NCPR 30 (3) (a) (i) or (ii) for a UK Grant of Probate were made for reasons of apparent simplicity. If the UK Grant had been applied for under NCPR 30 (1) (b) this situation could not have arisen. In the case of wills of persons dying domiciled in France NCPR 30 (1) (a) is in fact inapplicable since there is no procedure in France equivalent to a Grant of Probate and no court order is or needs to be made as to who is entitled to administer a French estate. NCPR 30 (1) (b) adequately covers almost every case, including the above two cases, for the certificats de coutume should have recounted the right of the persons entitled alone to administer, the appointment of an executor having no significance and the beneficiary named in the will in Case 1 not being entitled to administer in the presence of Miss Fortune whilst in Case 2 no beneficiary but Miss T Eyed can administer. The Grants would have issued to Miss Fortune and to Miss T Eyed (or their respective attornies) so that they would have combined the administration of the French and English assets in one hand as practice and common sense require.

    There remains the interesting question of the extent to which any acts done by the executors named in the UK Grants are void or voidable. Section 27 of the Administration of Estates Act 1925 deals with payments or dispositions made in good faith under a representation, but what is ‘good faith’ when the Executor knows that he is acting contrary to all the rules of the law of the deceased’s domicile?

    French law gives no right of appropriation such as is given to English personal representatives and the partage of a French estate has to be by agreement (in Case 1 between Miss Fortune and Miss Chief); or by sharing equally each asset; or finally by recourse to the French court. No such procedure has taken place. Is therefore a division of the English assets made by the person in the UK Grant binding on the beneficiaries? Has the English Executor the right to sell assets to pay French IHT which is the personal liability of the reserved or other heirs and not of the estate?

    Such judgements as appear relevant prior to the enactment of the 1925 statutory protection given to personal representatives tend to the view that a UK Grant of Probate as an order of the court provides virtually complete protection both for the executor and for those doing business with him. If this is indeed the case, the Rule under which the UK Grants referred to in Case 1 and 2 were issued offers itself as an invitation deliberately to set at naught the effect of French law which English law itself admits is the sole law governing the administration of the estate of a person dying domiciled in France.

    Indeed, it is interesting to note that in Cases 1 and 2 a leading French notaire, expert in international succession cases, refused to deal with either estate unless the UK Grants were revoked and all put back as it was at the respective dates of death. This might well be the view taken by an English Solicitor faced with the reverse situation when he finds that English law has deliberately been thwarted by French law. It is not without interest to note that in Re Duches of Orleans (1859 1 Sw & Tr 253) it was held that the English courts will not generally follow the grant of administration made in a foreign country if to do so would be in contradiction of English law. Why then should the English courts enable themselves to make UK Grants to persons in contradiction of foreign law which is in sole charge of the administration of the estate in question?

    Surely the solution is either to remove section (3) (a) of Rule 30 or at least for the UK probate Registry not to apply it without first considering its effect upon the administration of the estate as a whole.

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