An apartment in Paris. Three heirs, one of them in London, another in New York. The notaire is waiting for a power of attorney that never arrives. Service charges and property tax keep accruing. The inheritance tax return has not been filed. And nobody tells the family the truth: this file will not resolve itself, and every month of delay costs money that will not be recovered.
What is striking about these estates is that the deadlock is almost never about substance. It is very rarely about who is entitled to what. It is about procedure: a claim form served incorrectly abroad, a document without an apostille, a miscalculated time limit for appearance, a legal basis chosen at random among three articles of the French Civil Code that do not address the same situation. Those defects cost two years. They are what this article is about.
The substantive rules of French co-ownership — how an indivision works, what each co-owner may and may not do, how the exit is organised — are covered separately.
Inherited French Property in Co-Ownership (Indivision): Complete Guide
Which country’s court decides your French estate?
For deaths on or after 17 August 2015, the courts with jurisdiction over the estate as a whole are those of the Member State in which the deceased was habitually resident at the time of death (Article 4 of Regulation (EU) No 650/2012). If the deceased was not habitually resident in a Member State, the courts of a Member State where estate assets are located may still have jurisdiction over the whole estate, provided the deceased held that State’s nationality at death, or had been habitually resident there within the five years preceding the seising of the court.
Habitual residence is not domicile in the English sense, not tax residence, and not the address printed on a passport. Recitals 23 and 24 of the Regulation require an overall assessment of the deceased’s life: the duration and regularity of presence in the State concerned, the reasons for that presence, and the centre of family and social interests. A French national who died in Paris may perfectly well have been habitually resident in London.
Note at once which States are outside the system. Denmark and Ireland are not bound by the Regulation, and the United Kingdom never was. For the purposes of this article they are third States, exactly like the United States or Australia.
The subsidiary rule the judge must raise without being asked
Where the deceased was not habitually resident in a Member State, Article 10(1) gives jurisdiction over the whole estate to the courts of the Member State where estate assets are located, provided the deceased was a national of that State at death or, failing that, had been habitually resident there and fewer than five years had elapsed at the date of seising. Failing both, the courts of the State where the assets are located retain jurisdiction over those assets only (Article 10(2)).
The leading authority comes in two parts: CJEU, Fifth Chamber, 7 April 2022, V A and Z A v TP, Case C-645/20, and Cass. 1re civ., 21 September 2022, No 19-15.438, FS-B. The Court of Justice held that a court of a Member State must of its own motion examine its subsidiary jurisdiction under Article 10(1)(a) where, having been seised under Article 4, it finds that it has no jurisdiction on that basis. The French Cour de cassation set aside the appeal judgment and, ruling on the substance without remittal, held the French courts to have jurisdiction.
The facts, as set out by the Versailles Court of Appeal in the judgment that was quashed, will be familiar to many readers. A Frenchman born in 1922 moved to London in 1981 at fifty-nine, lived there for more than thirty years, married an Englishwoman in 1996, returned to France in August 2012 at almost ninety with advanced degenerative illness, and died in France on 3 September 2015. The bulk of the estate was in England: a London flat, a country house, valuable paintings, bank accounts, plus an account in Switzerland. In France he held only 10 % of the shares in a company that had bought the Suresnes flat where he lived. His English will left everything to his wife except his Domenico Gnoli paintings, which went to his children.
The Court of Appeal concluded that habitual residence had remained English, and stopped there. That was the error.
Three points from the reasoning change how the argument is run. The heads of jurisdiction in Article 10 are mandatory; there is no hierarchy between the Article 4 forum and the Article 10 forum, which cover distinct situations, so the word « subsidiary » does not make the provision any less binding. And, decisively in practice, Article 10 does not require the court to investigate the facts of its own initiative: it must determine the basis of its jurisdiction on the uncontested facts before it, which may differ from the basis relied on by the claimant.
The practical consequence is simple. Never plead Article 4 alone, and put in evidence the facts that trigger Article 10: proof of the deceased’s nationality, a notarial certificate of title, a land registry extract. Without them the court’s duty has nothing to operate on. And where the other side obtains a declaration of no jurisdiction under Article 4 without the court examining Article 10, the ground of appeal is secured — in the 2022 case, Article 10 had never been raised before the lower courts.
A warning in the other direction. In that same case the first three limbs of the appeal, which attacked the assessment of habitual residence, were dismissed without specific reasons. The location of habitual residence is a matter for the unfettered assessment of the trial judges. Fighting on that ground before the Cour de cassation is almost always lost; Article 10 is a question of law, and that is where the attack belongs.
The two limits of subsidiary jurisdiction
Article 10(1)(a) applies only where the deceased’s habitual residence at death was in a Member State not bound by the Regulation or in a third State (CJEU, order of 17 July 2023, PA v MO, Case C-55/23). Where the deceased was habitually resident in a bound Member State, Article 4 settles the question and there is no point invoking Article 10 as a fallback.
And the presence of estate assets is assessed at the time of death, not at the time the court is seised (CJEU, 7 November 2024, LS v PL, Case C-291/23). The practical significance in a blocked estate is considerable: an heir who senses proceedings coming and arranges for the only French asset to be sold does not thereby deprive the French court of jurisdiction. Conversely, an asset acquired after death does not create it.
One obvious condition is regularly overlooked: the asset must belong to the estate. Subsidiary jurisdiction was refused where title to the Paris apartment stood in the names of two of the children, even though the deceased had paid the price from his own funds, occupied the property and paid the charges (Cass. 1re civ., 29 May 2019, No 18-13.383, on Article 10(2)). The appellant argued that merely « credible » ownership should suffice at the jurisdiction stage. That argument failed. Check the title, not the funding.
What Brexit changed for a British estate
The United Kingdom is a third State for the purposes of the Regulation, and always was. For a British family with a French property, that has four consequences worth stating plainly.
Article 4 will rarely give jurisdiction to a French court where the deceased lived in the UK, so Article 10 becomes the principal battleground. If the deceased held French nationality, or had been habitually resident in France within the five years before proceedings, the French courts may rule on the entire estate. If not, they rule on the French assets alone — which, where the only French asset is a flat, is often exactly what you want.
A European Certificate of Succession produces no effect in the United Kingdom. Proving the capacity of executor or personal representative in England and Wales still runs through a grant of probate or letters of administration.
A French judgment is not recognised in the UK under the Regulation’s simplified regime. Recognition there depends on English private international law, which is a separate exercise and a separate cost.
And a UK-domiciled testator who chose English law to govern the succession will meet the French rules on forced heirship head-on. That subject has its own section below.
France has jurisdiction — but which French court?
This question is addressed almost nowhere, and it stops claim forms. Once Article 10 is established, the territorially competent French court must be identified. Every domestic provision points to the same place: the court for the place where the succession opened has exclusive jurisdiction over an action for partition (Article 841 of the Civil Code), the succession opens at the deceased’s last domicile (Article 720), and Article 45 of the Code of Civil Procedure sends all claims between heirs there, up to and including the partition.
The difficulty is obvious: by definition that last domicile is abroad. Applied literally, the domestic criterion designates no French court at all, and a court with international jurisdiction would have no forum in which to exercise it.
The soundest solution comes from a judgment that does not concern estates but whose reasoning transposes directly. Hearing an action for partition of a property situated in France, brought by the creditor of a spouse resident in Algeria, the Cour de cassation held that extending residence-based domestic criteria to the international order was not adapted to the particular requirements of international relations, which justified — for practical reasons of proximity and by virtue of the principle of effectiveness — adopting the criterion of the place where the property is situated. It designated the court of that place itself, without remittal (Cass. 1re civ., 4 March 2020, No 18-24.646, FS-P+B).
Two things support the transposition. Leading notarial doctrine places that judgment among its discussion of jurisdiction over international immovable estates, and draws from it that the French courts have international jurisdiction over an action for partition of a property situated in France even where the family’s residence is not in France. The same source attaches to it the earlier ruling that an occupation indemnity in respect of jointly owned property forms part of the partition operations governed by the law of the place where the property is situated, so that the French court of that place has jurisdiction (Cass. 1re civ., 23 January 2007, No 06-11.037).
The limit must be stated honestly. The 2020 judgment concerned co-ownership between spouses and Article 1070 of the Code of Civil Procedure, not a succession governed by Article 841. The Cour de cassation has not expressly transposed the solution to estate partition, and the word « exclusively » in Article 841 gives the other side something to argue.
Two precautions follow. Raise the difficulty in the claim form rather than letting it come from the defence, and plead an alternative basis: the court for the place where the defendant co-heir resides (Article 42 of the Code of Civil Procedure) or, where that co-heir has no known domicile or residence, the court for the place where the claimant resides — or a court of the claimant’s choosing where the claimant is himself abroad (Article 42, final paragraph). That last limb fits the typical file exactly: an untraceable heir and a claimant living overseas.
What you can obtain before the partition, and quickly
Waiting for the partition judgment is the most expensive mistake in these files. Three measures are available immediately, all before the President of the tribunal judiciaire ruling under the accelerated procedure on the merits (Article 1380 of the Code of Civil Procedure).
Selling the apartment without the silent co-heir
The President of the tribunal judiciaire may prescribe or authorise any urgent measure required by the common interest and, in particular, authorise a single co-owner to conclude a contract of sale of jointly owned property alone (Article 815-6 of the Civil Code, final paragraph, as amended by Law No 2026-248 of 7 April 2026). The rule is not new: the Cour de cassation already held that it fell within the President’s powers under Article 815-6 to authorise one co-owner to sell alone, provided the measure was justified by urgency and by the common interest (Cass. 1re civ., 4 December 2013, No 12-20.158). The legislature codified ten years of case law; the novelty is the visibility of the text, not the rule.
What that judgment adds, and the text does not say, is that it is not necessary to show that the other co-owner’s refusal endangers the common interest — that condition belongs to Article 815-5. Urgency and common interest suffice. The distinction is decisive when the heir abroad refuses nothing at all, but simply says nothing: no refusal can be established, so Article 815-5 is unavailable, while Article 815-6 remains open.
Urgency is built and documented. The facts of the 2013 case give the benchmark: a sale agreement signed on 10 September 2009, completion by notarial deed due no later than 31 October, and a seller who died on 20 September. The urgency lay entirely in the contractual deadline binding the estate. Transpose it: an expiring sale agreement, an offer with a deadline, deterioration of the property, recovery proceedings brought by the building manager, unpaid property tax, a tax deadline. A file that merely invokes « the length of the co-ownership » will be refused.
Having the estate administered while you wait
The court may appoint any qualified person as mandataire successoral — an estate administrator — to administer the estate on a provisional basis, by reason of the inertia, default or fault of one or more heirs, their disagreement, a conflict of interests between them, or the complexity of the estate (Article 813-1 of the Civil Code). Before applying, check whether the deceased had granted a mandat à effet posthume during his lifetime (Articles 812 and following): the appointed agent already holds the powers. Check also that no administrator has been appointed abroad.
The objection you will meet is always the same: « the applicable law is foreign, and it does not know your mandataire successoral. » Article 29 of the Regulation is often cited in reply, since it allows the courts of a Member State to appoint an administrator under their own law even where the law governing the succession is foreign. Be careful: that provision assumes the appointment is mandatory, or mandatory on application, under the law of the Member State with jurisdiction. The French Ministry of Justice circular presenting the Regulation takes the view that this does not apply to France, whose law provides for the appointment of an estate administrator without requiring it (circular of 25 January 2016, NOR: JUSC1601018C). The Article 29 argument is fragile.
The sound answer lies elsewhere. Notarial doctrine has long accepted that where administration has not been organised abroad, where the heirs disagree, or where the assets are left to deteriorate, a judicial administration of the co-ownership may be established in France on grounds of urgency and under French law, even where the succession is governed by a foreign law — without this being an exception to the competence of the law governing the succession, since the administrator’s powers do not touch the substance of the heirs’ rights. The counterpart is logical: if the administrator with authority under the foreign law does eventually act, the French provisional administrator must stand down.
Above all, the point has been decided on the facts. The 2022 judgment held the French courts to have jurisdiction to rule on the whole estate and to appoint an estate administrator, in a file where the applicable law was anything but French. Cite that judgment rather than Article 29.
Asking a French court for interim relief even where another court has jurisdiction
The least used provision of the Regulation, and one of the most useful. Provisional and protective measures available under the law of a Member State may be applied for to the courts of that State even if the courts of another Member State have jurisdiction as to the substance (Article 19).
In practice: the deceased was habitually resident in Spain, so the Spanish court has jurisdiction over the succession, but the Paris apartment is deteriorating and the building manager is pursuing arrears. There is no need to await the outcome in Spain. A sequestration order, a provisional administrator or any protective measure is applied for to the French court under Article 19 combined with the relevant domestic provision.
The co-heir who has gone silent abroad: three distinct regimes
This is where files are lost. French law does not treat the heir who says nothing in the same way as the heir who can no longer be reached. The choice of provision determines the court to be seised, the procedure, and the sanction for getting it wrong.
The heir can be reached but does nothing
Where a co-owner is in default, any of the other parties to the partition may serve formal notice on him, by extrajudicial document, to appoint a representative for the amicable partition. If he has not appointed one within three months of that notice, any of them may apply to the court to appoint a qualified person to represent him until the partition is complete, that person being able to consent to the partition only with the court’s authorisation (Article 837 of the Civil Code).
Two conditions matter. The document must be extrajudicial, and therefore served by a commissaire de justice according to the international rules set out below. And the three-month period runs only from a validly served notice. A recorded-delivery letter posted to Montreal triggers nothing.
There is now urgency in using it before issuing proceedings. Article 841-1 of the Civil Code, which allowed the notary appointed to draw up the liquidation account to serve formal notice on an inactive co-owner and then apply for the appointment of a representative, has been repealed outright (Law No 2026-248 of 7 April 2026, Article 7). The replacement mechanism depends on a decree that has not been published. The tool therefore survives before the judicial partition, in the hands of a co-heir under Article 837; it has disappeared during the operations, in the hands of the appointed notary.
A residual mechanism does survive, and it operates at the very end: where an heir defaults at the stage of drawing lots, the President of the tribunal judiciaire or his delegate may appoint a representative for him of the court’s own motion (Article 1363, second paragraph, of the Code of Civil Procedure), a power the judge supervising the operations also exercises (Article 1376). That prevents the partition from failing at the last signature. It unblocks nothing upstream.
The heir cannot express his intentions because of remoteness
Where a co-owner is presumed absent or, by reason of remoteness, is unable to express his intentions, an amicable partition may take place only under the conditions of Article 116 of the Civil Code (Article 836). The liquidation account is then subject to approval by the guardianship judge, and judicial partition remains available.
This is not a theoretical case. It covers precisely the heir whose existence is known but of whom nobody abroad has had news. Confusing it with Article 837 is the most frequent and the most expensive error, because it contaminates everything downstream.
Why that classification closes the two-thirds route
Sale of jointly owned property may normally be authorised by the court on the application of co-owners holding at least two-thirds of the rights, after they have expressed their intention before a notary, served that intention on the other co-owners, and a record has been drawn up of their objection or silence within a three-month period (Article 815-5-1). But that mechanism is expressly excluded « if one of the co-owners is in one of the situations provided for in Article 836 ».
It is commonly assumed that a two-thirds majority allows the parties to override an untraceable heir living abroad. The opposite is true: the harder the heir is to reach, the less available the provision becomes. And the final paragraph of Article 815-5-1 adds a formidable sanction — the authorised sale is not enforceable against the co-owner whose consent was lacking if the intention to sell was not served on him in the prescribed manner. One irregular service abroad, and a sale authorised by the court becomes unenforceable against the very person it was aimed at.
The minor or protected co-heir living abroad
This is the configuration that immobilises a file for longest, and it is poorly known. Where an estate including French property must be divided and a minor co-heir of foreign nationality is domiciled abroad, the protective rules are those of his national law or of the law of his habitual residence. In common law systems it is a court-appointed administrator who carries out the operations, and the concepts of electing to accept an estate, of selling or of dividing on behalf of a minor are foreign to those systems. Notarial doctrine describes a long and costly procedure.
The way out lies in one provision. The Hague Convention of 19 October 1996 on the protection of children, in force in France since 1 February 2011 and applicable throughout the Union, gives jurisdiction under Article 8(2)(b) to the authority of the State in which property of the child is situated. The French family judge may therefore be seised to deal with the assets located in France, even though the minor is foreign and resident abroad.
Where the co-heir is a protected adult living abroad, the Hague Convention of 13 January 2000 on the international protection of adults applies, in force in France since 1 January 2009: the adult’s habitual residence determines both jurisdiction and applicable law. Check this before doing anything — a protective measure opened abroad and overlooked in the French file is a ground of annulment further down the line.
Serving proceedings abroad: where cases actually collapse
The prior formal notice, and the sanction of inadmissibility
On pain of inadmissibility, a claim form seeking partition must contain a summary description of the estate to be divided, state the claimant’s intentions as to the allocation of assets, and set out the steps taken with a view to reaching an amicable partition (Article 1360 of the Code of Civil Procedure). This requirement cannot be cured by later submissions: the whole action is lost.
In an international file the difficulty is proving those steps against someone who does not reply. What holds up in court: formal notice served through the international channels together with its acknowledgement of receipt or its certificate of non-service, correspondence from the notary, requests for a power of attorney sent to the consulate. What does not: three unanswered emails.
Three channels, never interchangeable
A document to be served on a person habitually resident abroad is delivered to the public prosecutor’s office, save where a European regulation or an international treaty authorises the commissaire de justice or the court office to transmit it directly to the addressee or to a competent authority of the State of destination (Article 684 of the Code of Civil Procedure).
Three channels, in that order of priority. Within the European Union, Regulation (EU) 2020/1784 of 25 November 2020, with direct transmission between designated bodies. Towards a State party to the Hague Convention of 15 November 1965, transmission to the designated central authority. Elsewhere, delivery to the public prosecutor and the diplomatic channel. Using the wrong channel means serving a document that is void.
The defect that actually destroys claim forms: translation
The addressee of a document served within the Union may refuse to accept it if it is not drafted in, or accompanied by a translation into, a language he understands or the official language of the place of service. He must be informed of this by means of Form L annexed to the Regulation, and has two weeks from service to exercise that right by written declaration (Article 12 of Regulation (EU) 2020/1784).
And here is the sanction, which few practitioners have in mind: Article 693 of the Code of Civil Procedure prescribes, on pain of nullity, compliance with Articles 8, 10 and 11 and with paragraphs 1, 2, 3, 4, 6 and 7 of Article 12 of Regulation (EU) 2020/1784 where a document is dispatched to another Member State. A claim form sent without translation and without Form L to a Dutch-speaking or Spanish-speaking co-heir is therefore open to annulment, and will be annulled if the other side is properly advised.
If you are on the receiving end, the consequence is symmetrical. Where a client learns late that proceedings for partition have been issued against him in France, the first document to ask for is not the claim form: it is the certificate of service and the proof that Form L was delivered.
Two extra months, and the stay of proceedings
Before a court sitting in metropolitan France, the periods for appearance, appeal, opposition, application for review and appeal to the Cour de cassation are extended by two months for persons residing abroad (Article 643 of the Code of Civil Procedure). The point is frequently forgotten and is paid for at the case management stage, when the other side objects that the period was too short.
Two provisions then overlap where the co-heir does not appear, and the first is specific to estates. Where the defendant habitually resident in a State other than that in which the action was brought does not enter an appearance, the court with jurisdiction must stay the proceedings for so long as it is not established that he was able to receive the document instituting proceedings in sufficient time to arrange for his defence, or that all necessary steps were taken to that end (Article 16(1) of Regulation No 650/2012).
Domestically the mechanism is quantified: where it is not established that the addressee received the document in sufficient time, the court may rule on the substance only if three cumulative conditions are met — the document was transmitted by a method provided for by the European regulation, the applicable treaties or, failing that, Articles 684 to 687; a period of at least six months has elapsed since dispatch; and no proof of delivery could be obtained despite steps taken with the competent authorities of the State of destination (Article 688 of the Code of Civil Procedure).
The same provision offers the way out that nobody uses: the court may immediately order any provisional or protective measure necessary to safeguard the claimant’s rights. You do not wait six months with your arms folded. You apply, in the claim form itself, for the appointment of an estate administrator or for authorisation to sell, expressly citing the final paragraph of Article 688.
The European Certificate of Succession: what it does and does not do
The Certificate allows heirs, legatees with direct rights, executors and estate administrators to prove their status and their powers in another Member State without any special procedure (Articles 62 and 63 of the Regulation). Its use is not compulsory, and certified copies are valid for a limited period of six months.
It is commonly assumed that the Certificate is useless where the deceased was resident in a third State. That is wrong. The Certificate is issued in the Member State whose courts have jurisdiction under Article 4, 7, 10 or 11 (Article 64). Article 10 — subsidiary jurisdiction — is expressly covered, so a French notary with jurisdiction on that basis may issue one.
A distinction worth knowing, because it sometimes unblocks a file on its own. The Regulation’s jurisdiction rules bind courts: a Member State may not retain jurisdiction to issue its own national certificates of succession on the basis of the location of assets or of nationality where the deceased was not resident there (CJEU, 21 June 2018, Oberle, Case C-20/17). But a notary who does not qualify as a « court » within the meaning of the Regulation may issue national certificates of inheritance without applying those jurisdiction rules (CJEU, 16 July 2020, E.E., Case C-80/19). For France the point is settled by an official source that is rarely cited: the Ministry of Justice circular presenting the Regulation states that where notaries do not exercise judicial functions, as is the case in France, they are not bound by the jurisdiction rules of Chapter II (circular of 25 January 2016, NOR: JUSC1601018C). A French acte de notoriété therefore remains available even where no French court has jurisdiction over the substance.
Third, and this is a remedy almost nobody uses: a notary’s refusal to issue a Certificate can be challenged. The decision to issue or to refuse may be referred to the President of the tribunal judiciaire for the district in which the notary’s office is situated, by any heir, legatee, executor or estate administrator, within fifteen days of delivery or notification of the certified copy or of receipt of the refusal (Article 1381-4 of the Code of Civil Procedure). The President rules at first and last instance on application, the applicant and the notary being heard or summoned, and may draw up the corrected or amended Certificate himself. Fifteen days is very short: when the refusal lands, the decision to challenge it is taken within the week.
Finally, the Certificate proves status; it divides nothing. It is presumed to demonstrate accurately the elements it certifies and protects the third party in good faith who pays or transfers an asset to the person named in it (Article 69), but it replaces neither the agreement of the co-owners nor a partition judgment. Many heirs obtain one believing their problem is solved, and find themselves in the same position three months later.
Making your French judgment work abroad
Winning a partition judgment in France achieves nothing if it stays in a drawer because the asset, the bank or the land registry are elsewhere. This is the blind spot of almost every file, and the circuit is precise.
Within the Union, recognition is automatic: judgments given in a Member State are recognised in the others without any special procedure (Article 39 of the Regulation). Recognition may be refused only on exhaustively listed grounds — manifest contrariety to public policy, judgment given in default where the document instituting proceedings was not served in sufficient time, irreconcilability with another judgment (Article 40) — and lack of jurisdiction of the court of origin is not among them. Enforcement proper still requires a declaration of enforceability.
To move a French title abroad, the authority to be approached depends on the nature of the title: the registry of the court that gave the judgment or approved the settlement for a judgment (Article 509-1 of the Code of Civil Procedure); the notary or the entity holding the office keeping the original deed for a notarial authentic instrument, under Articles 59 and 60 of the Regulation (Article 509-3, II). That detail matters: not any notary, but the one holding the original.
To have a foreign title recognised or enforced in France, there are two separate desks. Applications concerning foreign enforceable titles under Articles 45 to 58 and 61 of the Regulation go to the court registry director of the tribunal judiciaire (Article 509-2). Applications concerning a foreign notarial authentic instrument, under Article 60 of the Regulation, go to the President of the chamber of notaries or his deputy (Article 509-3, I). Choosing the wrong desk costs months for a pure routing problem.
Two useful points. Applications made to the judge are exempt from the requirement of representation by a lawyer (Article 509-2, final paragraph). And the reference to the greffier en chef, still common in commentary and precedents, is out of date: the text now refers to the registry director.
Forced heirship: the rule that shocks common law clients
French law does not allow a parent to disinherit his children. A reserved portion — the réserve héréditaire — is set aside for them by law, and any gift or legacy exceeding the disposable portion may be reduced. The substantive mechanics, and how a will or a lifetime gift is challenged, are covered separately.
Contesting a French Inheritance: How to Challenge a Will or Estate Distribution
What concerns a blocked international estate is narrower: forced heirship as a blocking argument.
The starting point is a settled position of the Cour de cassation. A foreign law designated by the conflict rule which does not know forced heirship is not, in itself, contrary to French international public policy, and may be set aside only where its concrete application in the case leads to a situation incompatible with principles of French law regarded as essential — which in practice presupposes economic hardship or need (Cass. 1re civ., 27 September 2017, No 16-17.198, and, on the same day, No 16-13.151). Both cases concerned the estate of a composer settled in California and a trust capturing the entire estate for the surviving wife.
What notarial commentary draws from those two judgments deserves to be pleaded: in each case the Court noted that the excluded heirs did not claim to be in a position of economic hardship or need, and in the second that they were all adults. Only a state of hardship appears capable of establishing contrariety to public policy — and minority may amount to a presumption of need. A minor child wholly disinherited by a foreign law is not in the same position as an established adult.
A rarely noticed detail, decisive for what follows: in case No 16-13.151 the lower courts noted that the Californian probate code allows the judge to grant a maintenance allowance out of the estate to adult children who were dependent on the deceased. Reasoning by functional equivalent therefore predates the 2021 legislation by several years, and it came from the French courts themselves.
The legislature responded in 2021. Where the deceased or at least one of his children is, at the time of death, a national of a Member State of the European Union or habitually resident there, and where the foreign law applicable to the succession allows no mechanism protecting the reserved rights of children, each child may make a compensatory levy on the existing assets situated in France at the date of death, so as to be restored to the reserved rights conferred by French law (Article 913, third paragraph, of the Civil Code, from Law No 2021-1109 of 24 August 2021, applicable to estates opened since 1 November 2021).
Its compatibility with the Regulation was challenged before the European Commission by a multiple complaint, on the ground that it defeats the testator’s freedom to choose his national law. A Commission pre-closure letter, published in June 2026, adopted a literal and restrictive reading: the provision applies only where the foreign law allows no mechanism protecting children, a principle of functional equivalence being applied. Anglo-American family provision is thus treated as a functional equivalent of the reserved portion.
The position to take is a clear one: applied with that principle of equivalence, the provision has only a residual scope. Most systems that do not know forced heirship do have a mechanism protecting descendants — family provision, a compulsory share, maintenance claims against the estate, discretionary judicial powers. A co-heir who brandishes Article 913(3) to block the partition of a French property should therefore be put to proof that the foreign law contains no equivalent — a demonstration that will fail in the great majority of cases, provided a precise expert opinion on foreign law is produced rather than a general argument.
Two honest caveats. That reading has not yet been endorsed by the Cour de cassation, and a trial court remains free to adopt a broader interpretation of the text. And the Commission’s position, expressed in a pre-closure letter, does not carry the authority of a judgment of the Court of Justice. As matters stand it is a strong argument, not a guarantee.
One citation trap, worth knowing in both directions. It is still asserted, by parties and in some judgments, that the Regulation prohibits setting aside a foreign law « on the sole ground that its rules on the reserved portion differ from those in force in the forum ». That clause appeared in the Commission’s original proposal. It does not appear in the Regulation as adopted. In the text published in the Official Journal of 27 July 2012, Article 27 deals with the formal validity of dispositions of property upon death, and Article 35 — the only public policy provision — is confined to a single sentence. Check the text before repeating the citation, or before letting the other side’s version pass.
Tax: why your co-heirs do not share your interests
This is the worst-covered chapter of everything available on the subject, and it explains a good share of the deadlocks. In an international estate the co-heirs do not bear the same tax burden, and some have an objective interest in nothing being settled.
In the absence of a tax treaty, Article 750 ter of the French General Tax Code distinguishes three situations. If the deceased was resident in France for tax purposes, France taxes worldwide assets. If he was resident abroad and the heir is also resident abroad, France taxes only assets situated in France. But if the deceased was resident abroad and the heir is resident in France, France recovers the power to tax worldwide assets — subject to two cumulative conditions: the heir must be tax resident in France at the date of death and must have been so for at least six years during the preceding ten, and the charge extends only to the worldwide share received by that heir.
Translate that into a real file. The deceased lived in Singapore, one child stayed in Paris, the other is in Montreal. The Paris child sees his share taxed in France on worldwide assets; the Montreal child is taxed only on the French assets. They do not have the same interest in the estate being settled, nor at the same pace, nor with the same composition of lots. That asymmetry is rarely said out loud, and it is often the real cause of a co-heir’s silence.
Note also that tax domicile is not habitual residence under the Regulation. They are distinct concepts, defined by different provisions, and may point to two different countries for the same deceased. Tax domicile rests on the four alternative criteria of Article 4 B of the General Tax Code — the household, the principal place of stay, the exercise in France of a non-ancillary professional activity, the centre of economic interests. One suffices.
Two further points arise constantly in these files. A French property held through a foreign company does not escape the French tax base: shares in companies whose assets are predominantly French real estate are treated as French, and French property held indirectly is treated as situated in France where the deceased held, alone or with his spouse, ascendants, descendants or siblings, more than half the shares in the owning company, directly or through a chain of holdings.
And tax paid abroad is not always recoverable. Article 784 A allows inheritance tax paid outside France to be credited against the French charge, but the credit requires identity of characterisation: only gift and inheritance duties qualify. A State that taxes transmission on death as a capital gain — Canada notably — leaves a double charge entirely with the heirs, for one and the same death. The credit is also capped at the French tax due on the same assets; any excess is lost.
Where a bilateral tax treaty exists, it displaces those rules and allocates taxing rights by reference to the deceased’s tax residence and the location of the assets. The content of the France–United Kingdom and France–United States conventions on estates must be checked case by case; nothing in this article should be read as stating what they provide.
Finally, an administrative trap that costs money in silence. Where sums forming part of an estate pass to an heir whose de facto or de jure domicile is abroad, the depositary may release them only against a certificate from the public accountant recording payment or non-liability of inheritance duties (Article 807 of the General Tax Code). One non-resident heir is enough to freeze the accounts, including for the French co-heirs. The quickest route out is to request payment of the funds directly in discharge of the duties.
Documents coming from abroad: where files stall without a hearing
Many international estates stall on no point of law at all. They stall on the form of the documents produced, which the notary refuses and the court disregards.
Apostille and legalisation. Foreign public documents must be apostilled where the State of origin is party to the Hague Convention of 5 October 1961, and legalised otherwise. In the other direction, responsibility has changed hands in France: the notariat has carried out apostille formalities since 1 May 2025 and legalisation since 1 September 2025, through fifteen dedicated centres, with electronic issue and a flat fee per document. Requests still sent to the public prosecutor’s office at the Court of Appeal, a widespread reflex, now come back unactioned.
Exemption between Member States. Regulation (EU) 2016/1191 of 6 July 2016, applicable since 16 February 2019, removes the apostille requirement between Member States for public documents relating in particular to death, birth, domicile or residence and nationality, and provides multilingual forms that avoid translation. Mind the scope: the exemption covers the death certificate; it does not cover documents establishing capacity as an heir.
Translation. By a translator sworn before a French Court of Appeal. A translation made abroad, even by a locally sworn translator, is regularly refused.
Powers of attorney. For a French notarial deed, the power of attorney must be in authentic form. It is executed at a French consulate, or before a local notary and then apostilled and translated. A common trap: a power of attorney under private signature cannot be apostilled as it stands — an official declaration must first be added, typically a certification of the signature, giving it the character of a public document.
Land registration of a partition signed abroad. This one is not repairable other than by complete re-execution: to give rise to land registration formalities, an instrument must be received in authentic form by a notary practising in France (Article 710-1 of the Civil Code). A partition of French property received by a foreign notary, however regular, cannot be registered in France; the deed must be re-executed before a French notary.
The reflex that saves months: have a general power of attorney for the administration of the estate drawn up at the very start of the file, rather than a special power for each deed. A special power means restarting the consulate-apostille-translation chain at every stage.
How long, and what actually shortens it
An ordinary judicial partition is measured in years, not months. The international layer mechanically adds six to twelve months: service periods, the two extra months for appearance, obtaining apostilled documents, expert opinions on foreign law, and possibly an expert report.
The three levers that genuinely shorten matters, in order of effect:
- Apply, in the claim form and not two years later, for an estate administrator (Article 813-1) or for authorisation to sell alone (Article 815-6). Both go before the President of the tribunal judiciaire under the accelerated procedure on the merits (Article 1380 of the Code of Civil Procedure), and Article 19 of the Regulation allows them to be sought from the French court even where another Member State has jurisdiction as to the substance.
- Start the consular chain for powers of attorney immediately, before knowing whether the partition will be amicable or judicial.
- Serve correctly the first time. Service repeated means six months lost; service annulled during proceedings means the whole action.
The lever that never works is waiting for the co-heir to come forward. In an estate co-ownership, time works for whoever occupies the property, not for whoever is claiming a share.
Frequently asked questions
Do I need a lawyer in France if I live abroad?
Yes, as soon as judicial partition is involved: representation by an avocat is compulsory before the tribunal judiciaire. It is equally compulsory for an application to appoint an estate administrator or for authorisation to sell alone, both made to the President of the court. An heir resident abroad can neither issue proceedings nor defend them in person.
Can the whole procedure be run without coming to France?
In almost every case, yes. Exchanges with the lawyer take place remotely, personal attendance is not required in partition matters, and the signing of notarial deeds is handled by authentic power of attorney executed at a consulate or before a local notary, apostilled and translated. A renunciation may even be received by the courts of the Member State where the heir is habitually resident (Article 13 of the Regulation), and the Court of Justice has confirmed that such a declaration is formally valid where it complies with the formal requirements of that court, without also having to satisfy the formal requirements of the law applicable to the succession (CJEU, 2 June 2022, T.N. and N.N., Case C-617/20). The real constraint is the consular calendar.
Can I still ask for a partition ten years after the death?
Yes. No one may be compelled to remain in co-ownership and partition may always be provoked (Article 815 of the Civil Code). Two limits, though, and the first is a real danger for a distant heir: partition may be sought even where one co-owner has enjoyed part of the property separately, unless there has been a deed of partition or possession sufficient to acquire by prescription (Article 816). The co-heir who has occupied the property in France for decades may, in some configurations, claim acquisitive prescription. Second limit: an occupation indemnity and the income of jointly owned property may be claimed only for the preceding five years (Article 815-10, third paragraph). Waiting does not forfeit the right to a partition, but it forfeits money — and, at worst, the property.
Before you act
The rules set out here describe mechanisms; they do not tell you which one applies to your file. The choice between Article 837 and Article 836, the way urgency is established, the channel of service, whether to confine the claim to the French assets: each of those decisions turns on precise facts — the deceased’s nationality, the date and place of death, the State where the co-heir lives, the exact state of the documents available. An error on any of them cannot be cured by later submissions; it is paid for by starting the action again.
Valentin Simonnet is a lawyer at the Paris Bar (avocat au Barreau de Paris), trained at University College London. He practises in business litigation and white-collar criminal defence, and regularly acts for English-speaking clients in French estate disputes.
