Inheriting overseas property

Consider this hypothetical example: Ria has just received notice from a law firm acting on behalf of her late Aunt Marisol. Marisol was estranged from her son and predeceased by both her partner and daughter, so Ria is her sole beneficiary. This includes a condo in West Palm Beach, FL; an apartment in Marseille, France; investment accounts in both cities; and substantial assets in Ontario.

But inheriting overseas property can be difficult, depending on:

• the deceased’s domicile, residence and nationality;
• the deceased’s estate plan;
• the type and location of property you inherit;
• whether the property is in a common-law or a civil-law jurisdiction; and
• the law of that jurisdiction.

One of the important legal distinctions when dealing with foreign property is between immovable and movable property. Immovable property is real property and interests in lands, while movable is personal property other than real property and interests in lands. Succession to immovable property is governed by the law of the jurisdiction where the property is located, while succession to movable property is governed by the law of the jurisdiction where the deceased was domiciled (a legal concept different from residence).

So succession to Aunt Marisol’s West Palm Beach condo will be governed by Florida law, while the Marseille apartment will be governed by French law, since both are immovable. Succession to both investment accounts, being movable property, should be governed by Ontario law, since Marisol was domiciled in Ontario when she died. So Ria will need legal advice from Florida, France and Ontario.

Condo and investment account

Since Florida is a common-law jurisdiction, disposal of Marisol’s Florida assets will be governed by her will. If she had died intestate, succession to the condo would be governed by Florida’s rules, while the investment account would be governed by Ontario’s. In either case, Ria must appoint a personal representative in Florida to obtain access to the condo. Since Aunt Marisol has one will for her worldwide assets, Ria must first probate the will (i.e., have a court confirm the authority given to the executor in a will) in Ontario and then obtain an ancillary grant of probate (i.e., a process in which an original grant of probate is recognized in another jurisdiction) in Florida.

An Ontario resident executor may not qualify to act as a personal representative under Florida law, since that state has residency requirements. So Marisol’s Ontario executor must find a person who is a qualified personal representative under Florida law.

Aunt Marisol could have mitigated these problems by preparing a separate will under Florida law dealing only with the condo and investment account. The will could have appointed a personal representative qualified under state law. In that case, the administration of the assets could have proceeded concurrently with the Ontario assets.

More problems in France

France is a civil-law jurisdiction. Civil-law systems generally transmit property automatically to beneficiaries and have forced heirship rules. This means there’s a reserved portion of an estate that cannot be disposed of by will, but passes to certain beneficiaries set out in the Civil Code. Only the non-reserved portion can be disposed of by will.

Marisol excluded her estranged son from her will. But if France’s forced heirship rules apply, he will likely inherit a portion of the Marseille apartment. The investment account, being movable property, shouldn’t be subject to the forced heirship rules because Marisol was not domiciled in France.

In both cases, Ria will have to translate the Ontario will into French and follow the applicable French administrative procedures to gain access to the French assets.

As in the case of the Florida assets, Marisol could have mitigated some of these issues by obtaining legal advice in France and possibly preparing a French will.

Darren Lund is an associate at Fasken Martineau in Toronto.