Forced Heirship and Overseas Assets
It is increasingly common for people to have connections with more than one country. A person living in East Anglia may own a holiday home in France, Spain or Italy. Someone living abroad may still have a house, bank account or investment property in the UK. Families may be spread across several jurisdictions, and assumptions can be made when a Will is prepared in one country that may not work in another.
One of the issues that can cause particular difficulty is ‘forced heirship’. It is not a phrase many people come across until they are making a Will, administering an estate, or discovering that a loved one’s assets cannot simply be dealt with in the way everyone expected.
What is forced heirship?
In England and Wales, the starting point in relation to making a Will and who inherits from them is ‘testamentary freedom’. Broadly speaking, a person can choose who should inherit their estate, although there are circumstances in which certain people can bring a claim if reasonable financial provision has not been made for them.
Forced heirship is different. In many countries, the law says that certain family members must receive a fixed share of a person’s estate. Children, spouses or other close relatives may have protected inheritance rights, regardless of what the Will says. These rules are particularly found in some European countries, and they can apply automatically to property situated there.
The result can be surprising. A Will made in England may say that everything is to pass to a spouse, a partner, one child, or a charity. The law of another country may still reserve part of the estate for particular relatives.
UK residents with assets abroad
For people resident in the UK, the main risk is assuming that an English Will controls everything they own worldwide. It may not.
English law distinguishes between movable assets, such as bank accounts and investments, and immovable assets, such as land and buildings. In broad terms, immovable property is often governed by the law of the country where it is located. That means a villa, apartment or plot of land overseas may be subject to the succession rules of that country, including any forced heirship provisions.
This can affect estate planning in very practical ways. A person may want their spouse to inherit a foreign property outright, only to find that children are entitled to receive part of it. A parent may wish to leave an overseas asset to one child because another child has already received lifetime support, but local law may require a different result. There may also be local tax, probate and registration requirements.
Where EU assets are involved, the EU Succession Regulation may also need to be considered. Although the UK did not opt into the Regulation, it can still be relevant for British nationals with assets in participating EU countries, particularly where a choice of law may be available or has already been made in a Will.
People living abroad with property in the UK
The same issues can arise in reverse. Someone who is resident abroad may own a home, rental property, bank account or other asset in England and Wales. They may have made a Will in the country where they live, assuming it will be enough to deal with their UK assets. It might be. But it is not always straightforward.
English rules may apply to UK land and buildings, and the foreign Will may need to be proved or recognised before the UK asset can be sold or transferred. Questions may arise about domicile, the formal validity of the Will, Inheritance Tax, whether a UK Grant of Representation is required, and whether the terms of the foreign Will are clear enough to administer the UK asset.
For families dealing with a death, these are not just technical points. They can delay sales, hold up distributions to beneficiaries, create uncertainty for executors, and increase costs if advice is not taken early.
How does an English Will interact with overseas rules?
An English Will can be drafted to cover assets worldwide. In some cases, that may be appropriate. In others, it may be better to have separate Wills for different jurisdictions, each prepared or checked by lawyers familiar with the relevant local law.
The key point is coordination.
A foreign Will should not accidentally revoke an English Will. An English Will should not unintentionally interfere with a local Will prepared to deal with overseas property. Executors, beneficiaries, choice of legal clauses, tax planning and administrative requirements all need to be considered together.
It is also important to remember that formal validity and practical effectiveness are not the same thing. A Will may be validly signed under English law, but still not achieve the intended outcome if local succession rules, forced heirship rights, or probate procedures apply in another country.
Why take UK legal advice at the planning stage?
Early advice can help identify which laws may apply, whether more than one Will is needed, and how each document should be limited so that it does not undo the other. It can also help ensure that overseas planning fits with the position in England and Wales.
That may include advice on Inheritance Tax, domicile, the appointment of executors, trusts, lifetime gifts, the wording of choice of law clauses, and whether local lawyers should be instructed in the country where the asset is situated.
Good planning does not remove every difficulty, but it can reduce the risk of delay, family disagreement and avoidable expense. It can also help people make informed decisions where forced heirship rules cannot be avoided entirely.
When someone dies with assets in more than one country
After a death, a solicitor may be able to help personal representatives work out what authority is needed, where probate or an equivalent process must be obtained, and how the UK estate interacts with overseas assets.
This can include liaising with foreign lawyers, arranging sealed and court-certified documents, dealing with inheritance tax reporting, advising on the terms of the Will, and helping executors understand their duties. If there are competing rules in different countries, the solicitor’s role may be to identify the issue, obtain the right specialist advice, and keep the administration moving.
Where there is a dispute, advice may be needed on whether a Will can be challenged, whether a beneficiary has rights under forced heirship rules, whether an English claim is possible, or whether proceedings may be required abroad.
A practical point
Forced heirship is not always a problem, but it is rarely something to ignore. The earlier it is considered, the more options a person is likely to have.
Anyone with property or family connections in more than one country should take advice before signing a Will or making substantial lifetime arrangements. Likewise, executors dealing with an estate that crosses borders should seek guidance before assuming that the English position tells the whole story.
Cross-border estates can be managed, but they need careful handling. A well-planned approach can give families clarity at the outset and reduce the risk of difficult surprises later.
If you would like individual advice about any of the subjects mentioned here, the team at Fraser Dawbarns will be happy to help. Please complete our enquiry form, or call any of our offices, and we’ll be in touch.
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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.