Writing down your will not only allows you to organize your inheritance but also to express your last wishes. Writing a will is a voluntary act and allows you to bequeath all of what is in your possession, movable and immovable property, money etc. to the people of your choice.

To write a testament, the protestor; the author of the will and testament must be over the age of legal majority.  Adults under guardianship cannot write a will and 2 persons together (even a married couple) cannot make a common will. The will can protect the surviving spouse as part of a contract of civil union, the so called ’PACS’.

In France the will cannot be destined only for certain persons or organizations depending on the most direct heirs. A reserving part is entitled to the spouse, children or parents: half of the property goes to a single child, 2/3 property returns to children if they are two, ¾ of the property return to the children if they are 3 or more, ¼ of the property is reserved for the spouse if there are no descendants alive.

When a person has not taken any special measures to organize the transmission of his inheritance, the distribution of property between the heirs obeys legal rules at the time of death.

There are several types of testaments:

The holographic Will

From the Greek « Holo »: whole, and « graph »: written, this will must be entirely written by hand on a blank paper or a sustainable medium, dated precisely and signed by the testator’s hand. To be valid and authenticated, the will cannot be typed, even partially. A holograph will cannot be typed, dictated or written by a third party under penalty of invalidity. The holographic will shall not contain any erasures or stains. If the will has several pages, it must be numbered on each page and you have to write your initials on each page. It cannot be either post- or antidated.

This will is simple to carry out and does not incur any drafting fees or special formalities. Also the holographic will is easily revocable: it can be destroyed or replaced by a newer one, which automatically cancels the preceding. On the other hand, this will must be stored in a safe place: by a trustworthy person or the notary. Also, it can be easily questionable if certain rules are not met or if it contains provisions contrary to the law. It is advisable to deposit it at a notary who can register it in the central file of the provisions of the last Will (FCDDV). The custody of a notary and the registration in the Central Testaments file gives you a real guarantee for a modest sum.

The Holographic will (article 970 of the Civil Code) is the most common testamentary formula in France.

The Authentic Will

To be valid, the authentic will must be received and written in the presence of qualified persons: two notaries or a notary assisted by two witnesses. It is the testator who dictates the instructions and prescriptions to the notary, who writes down and can advise his client in matters of law and regulation. Once completed, the notary reads the testament to the testator who signs it in the presence of the second notary or witnesses, in order to validate the authenticity of the will. The Authentic testament is undeniable as it is certified authentic by the intervention of the notary.

type testament

The mystic Will

The Mystic Testament, a combination of the two previous Testaments, is very little used. It is in the form of a handwritten or computer written text, signed and dated by the testator, presented sealed before a notary in the presence of witnesses. The notary is therefore not aware of the provisions taken by the testator. Once in the hands of the notary, the latter shall draw up a record that authenticates “the deed of surrender of the will”.

NB: Notice that the notary cannot verify the legal incompatibilities that would allow the heirs to challenge the contents of the will!

The International Will

The International Testament is quite recent in France (1994). It is a simplified form of the mystic testament that can be used in France as well as internationally. It is recognized by all the acceding countries to the Washington Convention. It can be handwritten or typed and written by another person designated by the testator and in any language.

In France, this document will be registered by a notary. For a Frenchman living in another country the will can be registered by persons entitled to this function (diplomatic and consular agents). It is deposited in the presence of two witnesses who sign the document after the testator has recognized the authenticity of the will and has confirmed his signature.

The Testament is authenticated by a certificate given to the testator, it can also be recorded in the central file of the provisions of last Will (FCDDV). It is therefore recognized in many European countries and other states. To be admissible, the will must be dated and signed by the testator, entered in the central file of the testamentary provisions (FCDDV) of France and a copy must be retained by the testator and by a notary. It must not necessarily be handwritten by the testator and can be written in any language. On the other hand, it must be established before witnesses or authorized persons to be valid.

The ‘The Hague Convention’ of 5 October 1961 provides in its article 1  that a will is valid, in its form, if it complies with the domestic law: the place where the testator disposed, or of a nationality possessed by the testator, either at the time he disposed of either at the time of his death, or the place in which the testator had his domicile either at the time he disposed either at the time of his death or the place in which the testator had his habitual residence either at the time he disposed either at the time of his death or the location of the buildings.

Given these rules, a will made by two people in order to leave reciprocal property (the Conjunctive Testament), normally banned in France, can be applied in France if this testament has been written in a country that admits this form of testament and if one of the above criteria is fulfilled.

Also, the donation to the last living person, if it is common in France, is sometimes unknown or even banned in certain laws. Therefore, in order to ensure that this donation to the last living person is not applicable abroad, it is advisable to use two wills, one for each spouse.

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