In what circumstances should an individual make a Will, what are the consequences of dying without having made a Will, and what are the formal requirements for making a Will?
The Civil code provides rules which automatically apply to French domiciled deceased and French nationals electing for the French law of succession, in the absence of a Will. Rules are simple and of general application, regardless of the importance of the wealth and the wishes of repartition of assets of the deceased. This is the reason it is recommended that any French domiciled person and any French national electing for the application of the French succession law should make a Will.
In the absence of a valid Will, article 731 of the Civil Code provides five hierarchical classes of heirs:
- Children (or their descendants) which inherit per capita shares
If there are no living child or descendant,
- Parents and brothers/sisters share the estate as follows:
- If both parents are living and there is no brother or sister, each of them receive 50% of the estate.
- If both parents are living as well as brothers and sisters, each parent receive 25% of the estate and the brothers and sisters receive all together half of the estate shared per capita.
- If there is one living parent as well as brothers and sisters, the surviving parent receives 25% of the estate and brothers and sisters receive all together 75% of the estate shared per capita
- If there is only brothers and sisters they receive the total amount of the estate shared per capita.
If there is neither living parent nor brother or sister,
- Grandparents of each line (one for the father the other for the mother) receive together half of the estate which is shared per capital between each grandparent of the same line.
If there is no living grandparent,
- Uncles, Aunts and cousins who are nearest relations on each line receive half of the estate to be shared between them.
- The surviving spouse
- If there are descendants of both spouses, the surviving one receives either the whole of the estate in usufruct or a quarter in full ownership.
- If there are descendants who are not descendants of the surviving spouse, he/she receives a quarter of the estate in full ownership and cannot elect for the whole of the estate in usufruct.
- If there are both surviving parents, the surviving spouse receives half of the estate and each parent 25% of the estate;
- If there is only one surviving parent, the surviving spouse receives 75% of the estate and the surviving parent 25 % of the estate.
- In the absence of descendant and living parent, the surviving spouse receive the whole of the estate.
Two main forms of Will can be used: the holographic Will which should be handwritten by the testator (no witnesses are needed) and the authentic Will which is made in the presence of a “notaire” and two witnesses.
Executing a will is always recommended. The formalities provided under Italian law are minimal. Indeed, also an holographic can be valid.
In any situation in which a person wants to change the distribution determined by the succession law he should make a will. If a person dies intestate his heirs will be as follows: (i) the spouse, (ii) the children of the decedent and their issues, the parents of the decedent and their issues, the grandparents of the decedent and their issues.
In addition, a foreign resident who holds assets in Israel should consider making an Israeli will regard the Israeli estate.
B) The consequences of dying without having made a Will:
After payment of debts and funeral expenses, the remainder of the estate will be distributed as follows:
- If the deceased is survived by a spouse or partner and by children or remoter issue, the surviving spouse is entitled to half of the estate and the remainder is shared between the children and remoter issue, in equal shares per stripes.
- Similarly, if the deceased is survived by a spouse or partner and by parents, the surviving spouse is entitled to half the estate and the remainder is shared by the parents, in equal shares.
- If the deceased is survived by a spouse or partner and by siblings, or their issue, or by grandparents, the surviving spouse's share shall be two-thirds of the estate. However, if the surviving spouse and the deceased have been married for at least three years before the demise of the deceased and lived together in the matrimonial home, then the surviving spouse is entitled to all of the deceased’s rights in that residence and two-thirds of the remainder of the estate.
- Children of the deceased and their issue take precedence over the parents of the deceased, and the parents of the deceased and their issue take precedence over the grandparents of the deceased.
- Beneficiaries of the same class are entitled to equal shares in the estate.
- In the absence of an heir as described above, the State of Israel shall be entitled to inherit by law.
C) The formal requirements for making a Will:
Four forms of wills are recognised as valid, provided they comply with the requirements of the Succession Law: handwritten will, will executed in the presence of witnesses, will executed before an authority, and oral will. The execution of a will is a personal act by the testator personally, who must be an adult and legally competent.
A Will allows the individual to set his own rules, within the framework analyzed above, in succession, while possibly considering at the same time a reasonable and efficient tax structure of the property to be inherited.
An individual owning property in Greece and having no other connection to the jurisdiction, needs not make a Will in Greece, as the individual’s national law will apply [if not overridden by the EU Succession Regulation mentioned above].
In Greece, there are three types of ordinary Wills, all of equal legal effect:
- The holographic which is handwritten by the testator and stored privately;
- the public which is made before a notary public in the presence of witnesses and
- the secret which is drafted privately by the testator and handed to the notary public in a sealed envelope in the presence of witnesses.
Dying without a Will, triggers the intestate rules mentioned above in question 12.
An individual should make a Will if he or she doesn’t want the intestacy rules (of the state of his last habitual residence) to apply. Regarding German intestacy rules see questions 12 and 13. Regarding the possibility to opt for the succession law of another jurisdiction see question 14.
A testamentary disposition (last Will, joint Will, inheritance contract) in the form of a notarial deed might avoid the necessity of a certificate of inheritance. Such a certificate is generally speaking necessary in order to adapt the land registry and to prove the succession e.g. to a bank.
According to German law there are basically two valid forms of Wills: the holographic and the public Will. Whereas the holographic Will has to be handwritten and signed by the testator, the public Will is a notarial deed. Neither form of Will requires the presence of a witness.
Furthermore, the testator can enter into a contract of succession with another person or establish a joint Will with his spouse (or civil partner). A contract of succession has to meet the same formal requirements as the public Will.
Germany recognises the HCCH Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions 1961.
If a person wants to deviate from the intestacy rules, he must make a will.
There are three types of wills:
- A public will is drawn up by one notary in the presence of two witnesses, or by two notaries, and is subject to formal requirements. The testator has to dictate his will, which is then fully read by the notary to the testator before it is signed by the testator.
- An international will, which is drafted according to the rules set out in the Convention providing a uniform law on the form of an international will (Washington, 26 October 1973). It is less formalistic and consists of both a private document, which the testator declares to be his last will, and a notarial deed. The notary, nor the two witnesses know the content of the will.
- A holographic will is the least formal. It must be handwritten by the testator, dated and signed.
According to the European Succession Regulation, the whole estate is governed by one single law. Immovables located in Belgium are thus subject to the law that is applicable according to the Regulation and will no longer automatically be subject to Belgian law.
British Virgin Islands
The circumstances in which a person would make a Will are essentially the same as they would be in England and Wales.
It is however important to point out that, in view of the issues summarised in the answer to question 12 above, those owning BVI-situs movable property (typically shares in BVI companies or absolute beneficial interests in them) should ensure that any Will which he or she executes is compatible with the laws of the jurisdiction in which that person is domiciled and that this issue be kept under review in case his or her domicile changes after making the Will. Those domiciled in jurisdictions the laws of which contain forced heirship or similar provisions should seriously consider settling the relevant property on BVI trusts during their lifetimes should they not wish those who would otherwise be entitled to inherit such property to receive it.
BVI Wills are frequently made by those whose only connection with the BVI is owning property in the jurisdiction: these Wills tend to be confined in their scope to such property.
If an individual dies leaving British Virgin Islands-situs property without having made a Will, the rules of intestacy of the jurisdiction in which he or she dies domiciled will determine how his or her movable property is disposed of and the BVI’s rules of intestacy will determine how that individual’s immovable property is disposed of.
The BVI’s current rules of intestacy are contained in the Intestates Estates Act and which of a deceased’s family members will be entitled the estate it under that statute’s terms will depend on whether the deceased left a surviving spouse, issue or any grandparents or their descendants. If the person leaves no surviving spouse or issue, nor any of those more distant relatives, the entire estate will pass to the Crown bona vacantia.
To be valid under the internal laws of the BVI, subject to two rarely applicable exceptions, a Will must comply with the requirements of section 7 of the Wills Act. These require the Will to be in writing and to be signed at the foot or end by the testator (or by some other person in the testator’s presence and at his or her direction); the testator’s signature must be made or acknowledged by the testator in the presence of at least two witnesses who must be present at the same time and such witnesses must also attest and subscribe the Will in the presence of the testator.
It is however highly relevant for these purposes that, on the basis that the BVI currently has no equivalent to the English Wills Act 1963, the formal validity of Wills disposing of movable BVI property (and thus the manner in which they must be executed) will be determined (in accordance with historic English common law principles) by the laws of the jurisdiction in which the person dies domiciled.
A non-Muslim with substantial assets in Dubai should always register a Will with the DIFC WPR, which was established in 2015 as a mechanism for non-Muslims, over the age of 21, to register a Will to determine how their assets held in the Emirate of Dubai and/or Ras Al Khaimah are to be distributed on death. The DIFC WPR is modelled on Anglo-Saxon common law principles, and there are 5 different Will styles available; Full Will, Guardianship Will, Property Will, Free Zone Company Will and Financial Assets Will. An individual does not need to be resident in Dubai to register a Will with the DIFC WPR.
Law No.15 of 2017 was recently announced providing for the registration and enforcement of foreign Wills in the Dubai local courts, and the implementation of this law has now begun.
A person that owns property located in New Zealand (including real property) should make a Will. If such person dies without a Will which deals with that New Zealand property, that property will fall to be regulated by the Public Trustee. The Public Trustee must deal with the property according to New Zealand’s intestacy rules as follows: in the first instance, to a surviving spouse, children and dependants. If there is no surviving spouse, children or dependants, the property is passed to the parents, failing which, brothers and sisters will inherit it. If there are no brothers or sisters, then the property passes to the grandparents, failing which the uncles or aunts. In the absence of any such heirs, the assets go to the government.
There is complete testamentary freedom. A person must be 18 years of age before they can make a Will. The formal requirements of a New Zealand Will are as follows:
- In writing and generally be in a specific format, and words of formality are required.
- At least two witnesses who are in the presence of the person making the Will. The witness must subscribe their full names, addresses and occupations.
- Each page of the Will must be signed by the testator or testatrix and the witnesses.
If an individual dies without a Will and Monaco internal law applies to the succession pursuant to the existing conflict-of-law rules, the estate is distributed according to the rules of intestate succession as provided by the Monaco Civil Code.
An individual may freely dispose of his/her estate by Will, subject to certain limitations pursuant to the law applicable to the succession. The testator may, by Will, expressly designate his/her national law to govern the settlement of his/her estate. A Will is therefore an effective tool for estate-planning.
Three types of will can be made under Monaco law: holographic will, the will by public act and mystic will.
A holographic will must be fully handwritten by the testator, signed and dated, without witnesses.
A will by public act may be received by two notaries in the presence of two witnesses or by one notary in the presence of four witnesses. Its contents must be read out to the testator. The will must be signed by the testator, the notaries and the witnesses.
A mystic will must be written and signed by the testator or another person on his or her behalf and sealed. The signed will must be handed to the notary in a sealed envelope in the presence of four witnesses.
Monaco has adopted legislation allowing residents whose national law incorporates trust law to create will trusts in Monaco under their national law. The creation of will trusts under Law 214 must comply with the formal requirements prescribed by Monegasque law for wills by public act or mystic wills.