Two years after the UK left the EU at the end of the Brexit transition period, private client lawyers continue to look to the EU Succession Regulation (‘the Regulation’) as a key piece of legislation affecting clients with assets situated in the EU. The Regulation was never adopted by the UK, leaving it as a third state for the purposes of succession regardless of Brexit. The Regulation determines which law applies to the succession of a deceased person’s estate but does not determine how that succession is taxed.
Although never adopted by the UK, the Regulation still applies to succession planning where English private international law differentiates moveable and immoveable assets. A person’s domicile determines the succession of their moveable assets, and the law of the place where immoveable property is situated governs its succession. Our Private Client team can advise on the concept of domicile which is outside the scope of this note.
Which succession law will apply to your assets?
The Regulation allows you to choose that the law of your nationality, rather than local law, should determine the succession to immoveable property (land and buildings) situated in an EU member state. An express declaration is required to be made in your Will, or by deed, as to your choice of law of nationality.
A typical example for our clients would be a British national living in Portugal following retirement, or owning a holiday home in France, or a ski lodge in Italy, who can make a Will with an appropriate declaration that the law of England and Wales should apply to all their succession, even immoveable assets in EU states.
Where an appropriate choice of law is not made, the succession is determined by the deceased’s habitual residence, which is the country:
- where the deceased was habitually resident at the time of death; or
- with which the deceased was most closely connected.
Benefits of choosing the law of England and Wales
In England and Wales, we have complete freedom of testamentary disposition, which means that a person can leave their assets to whomever they choose. In many European countries ‘forced heirship’ rules can apply to a person’s worldwide estate. These rules direct how a person’s assets must pass on death. Whilst it is possible to do so in England and Wales, in some European jurisdictions a person is not able to disinherit their children.
Do you need a separate Will to cover assets in another country?
Despite the Regulation providing the choice of law of nationality for succession purposes, we find that having separate Wills in the countries where assets, particularly immoveable property, are located can reduce delays in estate administration. When making more than one Will to cover assets in different jurisdictions, we would ensure that one does not revoke the other and the terms do not conflict. It is important to obtain local advice from a suitably qualified lawyer for the country where the assets are situated and ensure they know whether you have made a Will in another country.
Contact our Private Client Solicitors
Our experienced Private Client team can guide you through your succession planning and have access to a network of qualified lawyers in several jurisdictions to ensure your succession planning is effective and meets your wishes.
If you are in need of advice or assistance on any of the legal issues mentioned in this article please contact Nicholas Barlow, Olivia Meekin, or Helen Langworthy on 020 7631 4141 or or email privateclient@bishopandsewell.co.uk Our Private Client Team will be glad to deal with any queries you might have.
This note is for guidance only and has been prepared in accordance with current legislation and procedures in force at the time of publication.
The above is correct as at 06 January 2023. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
