Property abroad – should you have a foreign will?

Property abroad – should you have a foreign will?

Many people have holiday homes in Europe, particularly in France, Spain and Italy and there are options as to what you do about the succession to your property on your death. You could simply rely on the forced heirship rules in each of these countries, which will pass the property to a spouse and descendants in specific shares, or you can prepare a Will in the relevant country for that property, or you could make a will in England (assuming that is where you live) covering your world-wide assets.

It is not essential to have a Will in both countries, but there are reasons for doing so, including:

  1. In the countries mentioned, if you are relying on an English will, you will need to provide a copy of the grant of probate from England before the Will is accepted abroad. Obtaining the grant in the UK can take time and this may in turn cause delays in dealing with the tax and distribution of the foreign property. You will also have to have the English will translated to the relevant language before proceeding.
  2. In Italy the relevant documents for the allocation of assets to the beneficiaries must be filed within 12 months of the death; in France, the filing of a return and payment of tax must be made within 6 months of the date of death if the deceased died in France, or 12 months if he or she died outside France; in Spain tax is due within 6 months of death, if not extended to 12 months by an application made within 5 months. If tax due is not paid on time, this can lead to penalties and interest, making the process more expensive than it might have been had there been a will in place in the relevant country.
  3. Where the English will leaves the assets in trust, this may cause difficulties since trusts are not recognised in France, Italy or Spain, where assets simply transfer between the deceased and the beneficiaries. Each country has its own way of dealing with trusts arising in a UK will, which would undoubtedly add delay and expense to the administration of the estate. In general if there is to be one Will covering world wide property, it would be best within that will to leave the foreign property directly to a beneficiary and not to a trust for one or more beneficiaries.
    Other points to bear in mind:
  4. If a new will is made abroad following the making of the English will, it must make it clear that the foreign will does not revoke the English will, and likewise, if the English will follows the foreign will you should ensure it does not inadvertently revoke the foreign will. If this does occur, then part of the estate may be left as though there were no will, and pass to beneficiaries under the ‘intestacy rules’ – not necessarily ending up where you might expect.
  5. It is possible to include in the English will a provision that the foreign estate be dealt with according to English law, so that the succession follows the terms of the will rather than any forced heirship that would otherwise apply. This will also ensure that the executor of the English will has the power to administer the estate both abroad and in the UK. However, it does not alleviate the other potential issues mentioned above.

Ideally you should seek legal advice in the country where the property is situated, and if necessary, your adviser can liaise your lawyer in England to ensure that the position is covered, giving you peace of mind for the future.