Leaving Foreign Property in Your Will

Under the lex situs principle, immovable property such as land and buildings is generally governed by the law of the country where it sits, not by the law of your home country or your domicile. This means that even if your UK will clearly states who should inherit your French villa or Spanish apartment, the actual transfer of that property after your death is likely to be dealt with under French or Spanish law, using their own procedures.

This is different from movable assets, such as bank accounts or personal possessions, which are more often governed by the law of your domicile wherever they happen to be located. Property is treated differently because it is tied to the sovereignty of the country it sits in, and that country's probate or succession process will usually need to be followed to transfer legal ownership.

Many civil law countries, including France, Spain, Italy and a number of others, apply forced heirship rules that reserve a fixed proportion of an estate for certain close relatives, typically children, regardless of what the will actually says. This is a significant departure from English law, where testamentary freedom generally allows you to leave your estate to whoever you choose, subject only to limited claims under the Inheritance (Provision for Family and Dependants) Act 1975.

The EU Succession Regulation, sometimes called Brussels IV, allows an individual to elect for the law of their nationality to apply to their estate instead of the law of the country where property is located, which can in some cases let a UK national avoid forced heirship rules for property in a participating EU country. Whether this applies, and how to make a valid election, depends on the specific country and requires local legal advice; the UK itself is not part of this regulation.

Because of the lex situs rule and the practical realities of local probate systems, it is generally advisable to make a separate will in the country where the foreign property is located, drafted by a lawyer qualified in that jurisdiction and dealing specifically with that asset. This avoids the delay and cost of your UK executors trying to navigate an unfamiliar foreign legal system with a document that was never designed for it.

A local will can be coordinated with your UK will so they work together rather than conflict, typically by each will containing a revocation clause limited to wills covering assets in that specific country, so your UK will and your foreign will do not accidentally cancel each other out.

If you are UK domiciled, your worldwide estate, including foreign property, is potentially within the scope of UK inheritance tax, using the nil rate band of £325,000 and the residence nil rate band of up to £175,000 for a qualifying home passing to direct descendants (though the residence nil rate band applies specifically to a UK or, in some circumstances, other qualifying residence, so its application to foreign property should be checked).

Many countries also charge their own local inheritance or succession tax on property situated there, and the UK has double taxation treaties with a number of countries to prevent, or at least reduce, the same asset being taxed twice. Because these rules vary significantly by country, specialist tax advice is essential if foreign property forms a meaningful part of your estate.

Start by identifying exactly what you own, where, and under what ownership structure, since some countries treat jointly owned property very differently to England and Wales. Then take advice from a solicitor in England and Wales alongside a lawyer qualified in the country where the property sits, so both wills are drafted with full knowledge of each other.

This is firmly outside what a DIY or online will service can safely cover, and should not be attempted without professional advice in both jurisdictions. Once local advice is in place, your UK will can be tailored to work alongside it for the rest of your estate.