Cross-border succession and the new European succession regulation
Last August 17th, 2015 anew piece of legislation has come into force, the European Succession Legislation (also called Brussels IV), and it will affect member states of the EU. However, this does not only affect EU citizens, but also anyone who has assets or those who are habitually resident in any European Union member states at the time of their death, except the UK, Ireland and Denmark, three countries which opted not to be signatories of this legislation.
When the testator owns assets in different countries or jurisdictions, it is important to prevent costly disputes which can significantly reduce the size of the estate and consider all his assets in different jurisdictions, so that the will can cover all contingencies.
This Regulation intends to simplify international inheritance cases and mainly addresses issues regarding cross-border succession and which law is applied to that succession, allowing citizens to efficiently plan and organise their will in advance in a cross-border context.
The law of the state where the deceased dies habitually resident will apply to succession matters, regardless of whether it is one of the countries who signed the legislation or not, unless the deceased was manifestly more connected with a Brussels IV state.
Nationals of non-Brussels IV states who are habitually resident in a Brussels IV state can choose the law of their nationality to apply to the succession of his estate, but it must be made in a testamentary disposition (expressly or implicitly, according to article 22.2). In case the deceased have not chosen their nationality law to apply to their states, the laws of the state where his habitual residence is will have the jurisdiction to rule on the succession, and it will include their worldwide assets.
On the other hand, according to article 10, if a non EU citizen ownsassets in a Succession Regulation member state and not habitually resident in any Brussels IV state at the time he passed away, the courts of any state in which assets are located will have jurisdiction to rule on the succession only if: (I) the deceased had nationality of that state, or (II) if, he or she was habitually resident in that state within five years of death. If both failed, (III) the courts of the member state in which assets of the estate are located shall nevertheless have jurisdiction to rule on only those assets.
In such circumstances, individuals with cross-borders interests must be aware of the issues cross-border successions can cause, in order to clarify by testamentary disposition which rules will be applied to deal with the inheritance.
Cross-border successions made easier:
European E-justice: https://e-justice.europa.eu/content_successions-166-en.do
Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32012R0650