EU succession rules
A new EU regulation called Regulation (EU/650/2012), also known as Brussels IV, recently came into force and it may affect the succession of your estate if you have connections with more than one country, and at least one of those countries is an EU member state where the regulation applies.
Though the regulation only applies to deaths on or after 17 August 2015, any will or other estate planning which was put in place before this date may still be affected, and you should take advice where necessary.
The regulation applies to the following EU member states: Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
Where you have assets in more than one country, you must be aware of which country’s laws will govern who inherits your estate on your death. Where more than one country’s laws may apply, the countries concerned will apply rules are known as the conflict of law rules, which dictate which of the laws apply. The regulation is aimed at simplifying the interaction of the conflict of law rules of different countries.
Countries where the regulation does not apply will continue to apply their own conflict of law rules. Even though the UK did not sign up to the regulation, the regulation may still affect the way that conflict of law rules in England and Wales, Scotland and Northern Ireland interact with EU member states where theregulation does apply.
Under English law, you can usually leave your property to who you want in your will. Succession to a person’s immovable property (i.e. land and buildings) is governed by the law of the country where the property is located. Succession to a person’s movable property (i.e. everything else) is governed by the law of the country where they are domiciled when they die.
In countries where the regulation does apply, the general rule is that the law of the country where you are habitually resident when you die will govern the succession of your entire estate, unless:
- You were manifestly more closely connected with another country when you died (for example, you had only recently moved to the country of your habitual residence), or
- You elect for the law of your nationality to apply instead.
Some countries, for example France, enforce rules which dictate to whom and in what shares you must leave your estate on your death, known as forced heirship rules. Forced heirship rules may also affect the amount of tax that an estate is liable for, who administers an estate, which court decides any disputes about an estate and who can make claims against an estate. By applying the law of their nationality, a person can ensure that their estate is governed by the law with which they are most familiar, and avoids any unwanted forced heirship rules applying.
If you wish to elect for the law of your nationality to apply to your succession, you can do so by will or codicil. If you have an existing will, the wording of this may be sufficient to elect for the law of your nationality to apply to your estates. It is also recommended that you make an election in your will if:
- It is unclear where you are habitually resident
- The regulation does not apply in the country of your habitual residence (in which case that country may apply a different law)
- It is unclear whether your existing will makes a choice of law
If you are affected by the regulation we strongly recommend that you contact us to review your will (or to make a will where you do not already have one) to ensure that your estate will pass to your chosen beneficiaries.
It is also important to be aware that your existing will may be worded in a way that deems you to have made a choice of law election whether you intended it to or not. It may also be necessary to make a will in each country that you are connected to, and we should be happy to liaise with foreign advisers about these.
If you would like to speak to somebody in more detail about how the regulation affects you, please contact:
T. 020 7227 7329
T. 020 7227 7414
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.