Brussels IV Regulation No. 650/2012
You may be aware that under the new EU regulation, effective 17 August 2015, a testator may choose whether the law applicable to their succession should be that of their habitual residence or that of their nationality, even if that state is not a member state.
What does this mean?
For British citizens who have assets in the participating EU states, these changes will enable them to know in advance which law will apply to their succession. English common law means English testators can leave their assets to who they wish (subject to the Inheritance Family Provisions legislation) and this is known as testamentary freedom.
In continental Europe, a large part of an estate (often around half) is reserved for the surviving children of the deceased and must be equally divided between them. This ‘forced heirship’ makes it impossible to disinherit financially irresponsible children; it also makes it hard to reward the deserving by perhaps leaving more to a daughter who gave up her career to care for her ailing parents. Also ‘clawback’ laws in many countries stop parents from avoiding forced heirship by giving away assets during lifetime.
Previously, if you are resident in England with real estate in France for example, the laws of forced heirship would apply to that part of your estate in France. From August 17th 2015, this situation changes. Any British national who has property in one of the participating states can choose the country of their habitual residence or nationality as the law to govern who gets what when they die.
In other words they can place a provision in their wills stating that they wish English law to be the applicable law for their assets situated in an EU state.
For English nationals with foreign assets, it would be advisable in most cases for them to make an election that succession to their assets situated in the Brussels IV zone should be via English law.
Would you like further information on the new regulations? Contact us for a copy of the BTWC Briefing Note.
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