How does a Notaire deal with an election of UK law on death?

Q:A friend took advantage of the 2015 EU regulation to leave his estate under UK law, to one beneficiary. The notaire dealing with his estate claims the matter must follow ‘English procedure’. Thus he has applied to the French court to appoint an executor ‘in accordance with English law ‘. Is it necessary?

A: Under the EU Succession Regulation a person living France or with assets in France can indeed elect the law of their nationality to apply to their estate, e.g. the law of England and Wales, or Scotland or Northern Ireland.
The notaire will administer it in accordance with English law, which for example allows freedom to leave assets to a surviving spouse on the first death with children only to inherit on the second death.
The appointment of the executor and their authority is derived from the will, not a court order or grant of probate. If English law is elected and no executor is appointed in the will then a beneficiary can act as such.
In the UK a grant of probate is often obtained from the High Court in order to confirm the validity of the will and to confirm who the executors are.
However this is limited to assets in the UK. If dealing with a UK will notaires may request that a UK grant of probate be obtained for good measure.
Even so, where there are no UK assets that require a grant of probate you cannot easily obtain one.
In those cases notaires take a view as to whether to accept the will and the appointment of executors, perhaps together with an affidavit of law from a solicitor (certificate de coutume) explaining the validity of the will and the executor’s authority to act.
A notaire may however decide to seek French court approval of the will and executor’s appointment by application for an ordonnance from a tribunal judiciaire. This is quite technical and costly.
The notaire probably has good reason to make the application in your case and I am aware some advisors consider it to be always necessary, despite additional cost.
However, while it is certainly possible and correct, it is not something that is requested by most notaires in most circumstances.

John Kitching

Director

French Law Consultancy

Article published in the November 2020 Connexion France Magazine