New EU Regulations on death – a case for International Wills?

New EU Regulations on death – a case for International Wills?

Written by Nick Evans, LLP Senior Partner at Griffith Smith Farrington Webb LLP

A little known piece of EU law becomes effective from 17 August 2015. Regulation (EU) 650/2012 (known as Brussels IV) will have a material effect on anyone in England and Wales who has assets in another EU member state.

The aim of Brussels IV is to remove obstacles for the free movement of persons in relation to cross border estates, to allow EU citizens to organise succession matters (planning on death) and to give more effective guarantees for the rights of beneficiaries when people die.

Currently every EU member state has different rules which apply to a person’s assets when they die. The UK (or rather England and Wales) has a common law system which allows for testamentary freedom for Wills. In England and Wales you can leave whatever you like to whoever you like. This is different to other EU member states who operate a civil law system. Often in those states the law determines who will benefit when you die (often known as forced heirship rules). Additionally, England and Wales has a “scissionary system” which distinguishes between moveable property (money) and immovable property (bricks and mortar). Other EU member states have a “unitary system” that treats all assets the same. In short, there is a conflict of laws, practices and definitions. Anyone in England and Wales who has assets in another EU member state will be familiar with these issues. We frequently deal with estates with a cross border element and are well aware of the complexities, costs and delays involved in dealing with repatriating assets from another EU member state. Brussels IV seeks to provide greater certainty.

From 17 August 2015 it will be possible to elect to apply the law of your nationality (e.g. England and Wales) for succession matters in other EU member states. Brussels IV applies whether you leave a Will, or whether you don’t and are intestate.

Although the UK has not opted into Brussels IV, Brussels IV will still apply and it will be possible to elect for UK law to apply to assets in another EU member state. This would appear to open the way for having an international Will (or rather one which applies in the EU). However, the legislation is complex and how in practical terms the relevant authorities in France or Spain apply UK law (or how the Probate Registry and Courts here in the UK apply French or Spanish law to UK assets owned by a French or Spanish person) remains very unclear.

The important point to note however is that if you have assets in another EU member state, you need to be alive to this piece of legislation and actively consider whether you need to have a new valid Will in place which properly governs the succession of all your EU assets.

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