I have flagged this previously as a potential issue. The Will Trust is not really an apt solution where there is a French connection, and certainly not where there is an executor/Trustee. Immediately any action is taken to constitute the trust in the trustees’ hands, for example by a declaration that the trustees hold the assets under the trusts of he Will trust, the French resident trustee has a declaratory obligation to file a 2181 Trust1 within one month of the vesting.
Technically a failure to do so is subject to a 20 000€ default penalty which has been confirmed as constitutionally valid by the highest French court.
Solution? If you are constituting by a declaration of trust, to the extent that the Will allows, the French resident should continue to act in relation to the estate only in their capacity as an executor, until such time as they are ready to be declared as a beneficiary and as a trustee (I would not recommend that unless they have been fully advised as to the annual reporting requirements and their personal responsibility in France for the declaration of chargeable events in the trust and payment of any taxes due under the separate French legislation).
It would be worthwhile checking the wording of any template will trust to ensure that any person resident outside the English jurisdiction and likely to be a Trustee is prevented from becoming anything more than an executor until their status has been determined.
Any English trustee in any event is required to declare the constitution of the Trust with a French connection within one month in France or face the same penalty.
Noting that the Will Trust will require registration at the UK’s Trust Register, the French administration will have automatic access to it and will probably be automatically notified of the registration of a beneficiary with an English Address.
There is also a mechanism in place for collecting the 20 000€ French penalty through HMRC, although I have not heard of it being used yet.
HMRC might for once be cooperative and come to an agreement with their French counterparts that a registered English Will trust could be spared some declarative obligations in France. However, that is most unlikely, given the French deeming mechanisms in place for gift, succession and now the unclassified “trust” transfer duty which is now generally, but wrongly recognised as a new chargeable mutation à titre gratuit despite it falling outside the legal definition of a gift or a succession transfer. That point has been left in abeyance.
Those who have been following the evolution of the prélèvement (trust levy of 1.5%) will have noted that its scope has been extended to directly tax settlors, beneficiaries and trustees in the case of any default in the annual declaration and the non inclusion of any immovables chargeable to IFI held in trust. I will post a commentary on www.overseaschambers.com in due course.
In the case in question, the minor may also be considered the final bénéficiaire effectif, so not only will the French resident with a trust life interest be a bénéficiaire, and depending upon their interaction; possibly a bénéficiaire réputé constituant", the minor would need to be identified and declared as the last beneficiary in line.
There may be room to consider creating an equitable interest under s.1(1) LPA without resorting to a trust of land. I have also managed to convince the French administration that an English Trust of Land is an immovable in its own right, and therefore does not fit within their definition of a trust as its nature and extent is determined by the lex situs and la loi du sol.