Executing a Will may have always been at the back of your mind. Wherever you come from, whatever your personal situation, there are always talks of Estate planning. Even more so when you settle down in a foreign country. Whether it be permanently or only for a few years, it is important to make sure that your interests and those of your nearest and dearest are protected. Because death can occur suddenly, it is always better to be prepared. This can be done with a Will.
You may already have executed a Will in your home country. However, as a foreigner in the UK, whether you are with family or not, with assets in the UK or in your home country, it is highly recommended you do a little planning.
Making a Will, will enable you to establish with certainty
- What is the law applicable to your inheritance?
- Who are the beneficiaries of your Estate?
- What share are your beneficiaries entitled to?
It will also enable you to provide for your children under 18, by appointing Legal Guardians and render the process of dealing with the Probate in the UK as well as administrating your Estate in different countries, less tedious by appointing personal representatives. (The Probate is the name given in the UK to the process of administrating the Estate of the deceased).
The first important step is to determine the Law applicable, to your Estate.
Your personal situation may well involve different laws applicable: the one of your country of origin as well as the UK law. You will therefor need to determine with certainty which law will be applicable to your situation.
Here is some indication of how complicated things can get.
Each State has its own legislation with regards to successions. They provide in the absence of a Will (“intestacy”) who the beneficiaries of an Estate are, and what share each type of beneficiaries is entitled to.
With regards to Wills and their contents there are major differences between the UK and other countries.
In the UK, the rule of testamentary freedom applies. This means that you can choose freely how to dispose of your assets. This is not the case, for example in a lot of EU member states, such as France, where the rule of forced heirship is applied. This implies that some protected heirs, such as your children, cannot be disowned. This principle cannot be overruled in a Will, thus curtailing the freedom of testators in France.
To make things “worse" a European Regulation (650/2012), often referred to as Brussels IV, was introduced on August 15th, 2015, aiming at harmonising, and facilitating the administration of successions involving different member states.
Brussels IV provides in a nutshell that the law applicable to an Estate, will be the law of the country of last habitual residence of the deceased. The same law will apply to the whole Estate, wherever the assets may be situated.
It will either be the law of the last habitual residence of the deceased, or the law of the deceased’s nationality on the condition that the deceased had made a Will in which he/she had expressed such intention (“profession juris”).
Although the UK had opted out of the Regulation, the latter provides that the law of a third-party state can apply to an Estate. Therefor UK law could well apply to the succession of an habitual resident of the UK.
UK law provides a distinction between immovable assets (properties) and movable assets (bank accounts), applying to the immovable assets, the law of the jurisdiction where the property is situated and to the movable assets, the law of the domicile of the deceased. A word of caution, “domicile” in Common Law does not mean the country where one resides but refers to the ties every person has with one country, originating from birth, the country they have the most ties with. This can change during are lifetime but cannot be done lightly. Domicile will usually be linked to your nationality.
As you can see making a Will could enable you to establish with certainty the law governing your assets, thus avoiding a lot of hassle to your personal representatives, when faced with the task of administering your Estate, after your death.
What else can we indicate in a Will?
As well as determining the law governing your Estate, you will be able to indicate the beneficiaries of your Estate, and the share to which each of them are entitled to.
A Will enables you to choose and appoint your personal representatives (Executors and Trustees) who will be in charge of administering your Estate, thus facilitating the Probate process in the UK. Although personal representatives are not required in most EU states, once appointed they will provide a contact for the Foreign Notaries or solicitors in charge of the Successions in the various countries involved, thus ensuring that the administration of your worldwide Estate will be dealt with smoothly. It may not always be necessary to have to wait for the Probate in the UK to be finished before the process in your country of origin can begin or vice versa.
Making a Will is also an opportunity to appoint Legal Guardians for your children under the age of 18 and provide for them financially. This is important since on the subject of legal guardianship, legislations may vary between the country of origin and the country of residence.
When preparing a Will, you also have to take into account the tax implications, in the UK as well as in your country of origin.
A question that is often raised is: how many Wills should we make? It will all depend on your personal situation. If you only have assets in the UK, one may suffice. If you have assets in different countries, in order to simplify the probates/ inheritance process, executing Wills in each country, may be advisable. However, you need to make sure that they do not revoke or contradict each other.
Lastly, Wills are done differently in each jurisdiction. In the UK for instance, a Will needs to be signed before two witnesses. In France, a Will can be written and signed by the testator without witnesses. It can also be prepared by a Notary and signed before two Notaries or a Notary and two others witnesses.
However as long as the Will is valid in the country where it was executed, it will be deemed valid in other countries that have signed the Hague Convention dated October 5th, 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.
Bearing in mind that you need to be 18 or over and sound of mind, I would highly recommend if you have assets whether in the UK or elsewhere, to seek advice from a professional about making a Will.
Peace of mind can be achieved with a simple Will.
Sarah-Jane Tasteyre, French lawyer,
article published on @frenchtouchproperties