Do you live in England but own a property in France, Spain or any other EU member state?
Are you a national of one EU member state but live in another?
If your answer to either of the above questions is yes then you could be affected by the EU Succession Regulation (also known as Brussels IV) which applies in relation to deaths which occur on or after 17th August 2015.
If you have a connection with more than one EU member state you need to know which country's law will govern who inherits your estate when you die. This is important because the law of many countries provides that certain shares in your estate are reserved for close family members (this is sometimes called forced heirship). Under English law, you can usually leave your property to who you want in your will.
Each country has its own rules to decide which law applies (known as conflict of laws rules). The interaction of these rules is often complicated and unclear, making it uncertain who will inherit your estate. The Regulation aims to reduce this uncertainty, but may change the effect of wills and other estate planning put in place before that date.
Although the Regulation does not apply in the UK, it affects the way that conflict of laws rules in England and Wales, Scotland and Northern Ireland interact with the rules of the EU member states where it does apply.
Which country's law applies to my estate under the Regulation?
In countries where the Regulation applies, the default position is that the law of the country where you are habitually resident when you die governs succession to your estate as a whole. However, the default position is overridden if:
- You were manifestly more closely connected with another country when you died (for example, because you had only just moved out of it).
- You choose to apply the law of your nationality instead. You can make the choice in a will or codicil. If you have already made a will in accordance with the law of your nationality, you may be treated as having chosen to apply that law even if your will doesn't mention this.
If you are a UK national, you can choose to apply the law of the jurisdiction within the UK with which you are most closely connected (that is, England and Wales, Scotland or Northern Ireland).
For example, if you are a UK national resident in England but owning a property in France, you can include a choice of English law in your wills. France will then apply English law to the succession of your French property and you can leave it to whoever you like without having to worry about French forced heirship rules.
What are the advantages of making a choice of law in my will?
For many people, choosing to apply the law of their nationality will ensure that their estate is governed by the law with which they are most familiar.
It is unclear whether a will you have already made may be treated as making a choice of law.
What other effects does the Regulation have?
The Regulation does not only affect who receives your estate when you die. It may also affect other matters such as:
- Who administers your estate
- How your estate is taxed
- Who can make claims against your estate
- Which court decides any disputes about your estate
It is important to take all these factors into account when making a will or carrying out other estate planning such as making gifts or creating trusts during your lifetime.
What should I do now?
If the Regulation affects you, we strongly recommend that you review your will (or make a will if you don't have one) to ensure that your estate will pass to your chosen beneficiaries in the most tax-efficient way and to minimise the risk of costly disputes.
We can advise on wills and other estate planning tailored to your specific circumstances, taking into account your residence, domicile and nationality status as well as any changes that you expect in future.
It is essential to co-ordinate wills and planning in each country concerned and we can liaise with foreign advisers on your behalf.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.