How is the EU Succession Regulation (EU)
n°650/2012 applied in France? Good question.
Ten years after its publication and eight years after its coming
into force, the actual application of the EU Succession Regulation
can still be uneven in France.
Whilst notaries in the larger centres seem to have the
Regulation largely in hand, their colleagues in the country have
not always been able to assemble the necessary resources or
specific competences required to ensure its correct and coherent
application where a succession to French property is made subject
to a foreign law under the Regulation. The fact that a large number
of second or even first homes are distant from major towns does not
help. Certain notaries when faced with a foreign law required by
the Regulation even prefer forcing a renvoi (return) to French law
in a manner contrary to the Regulations provisions. That places the
ensuing succession at risk of legal challenges, particularly where
there may be family disagreements.
It is not a simple position for a notary to deal with,
particularly when faced with composite foreign states such as the
United Kingdom and the British Islands and territories. Each has
their own legal system and, for example, it is not possible
to say that Scottish law applies to an English succession. Even
more so to attempt to apply English law to a Jersey succession. The
Regulation defines the law applicable by reference to habitual
residence or by an option for the law of the testator's
nationality: "British" can mean many things, but it does not mean
that an Englishman is a Scotsman, a Northern Irishman or a
Jerseyman. Those distinctions need to be taken into
consideration in the context of the Regulation,
Whilst the application of provisions of foreign law are set out
in the Regulation, which is directly applicable in France, the
notary cannot be expected to be competent in the foreign law with
which he is confronted. The notary however has a duty to advise the
heirs on the interaction between the foreign law governing the
succession and the extent and the manner of its application under
the Regulation in France.
How can this be dealt with?
The simplest is to have a certificate of foreign law drawn up by
a lawyer specialised in the Regulation in the foreign law concerned
and above all else experienced in dealing with French
succession law. This enables the notary to draw up the necessary
actes (deeds) to transfer the assets. Those are: the
attestations/certificats d'hérédité et immobilière, without of
course lessening the importance of the succession declaration for
tax purposes. This enables the notary to cite the foreign law and
apply it in their actes as certified by the foreign lawyer,
enabling the transfers to take place in France accordance with the
foreign law imposed by the Regulation.
So as to permit the citation of the foreign law certificate in
the notarial actes, under the foreign lawyer's
responsibility, the certificate should be drawn up in France, where
the foreign lawyer is bilingual, or have it formally translated by
a French Court registered translator.
Following on from the recent Loi confortant les principes
Républicaines and the introduction of the recent prélèvement
compensatoire, the notary's duty to advise in international
succession issues has been significantly enlarged. It is therefore
better for advisors to collaborate on these issues.
I am available to assist French notaries in establishing such
certificates of English and Jersey law in the French language when
these are required under the mechanics of the application of
the Regulation in France.