EU SUCCESSION REGULATON

On 4th July 2012, the EU adopted the EU Succession Regulation, also known as Brussels IV.  It was intended to unify the conflict-of-law rules of EU Regulation States in relation to cross-border successions.  As a result of the changes, the courts of the Member States in which testators have their last habitual residence are entrusted with jurisdiction to deal with the succession and the domestic laws of that Member State will apply to the succession. The application of a single law by a single ruling body to a cross-border succession eliminates the spectre of multiple proceedings being brought in multiple jurisdictions potentially fragmenting the succession. All of the Member States of the European Union, except for Ireland and Denmark, have opted in to the Regulation. The new regime applies to the succession of those who die on or after 17 August 2015.   

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The principal features of the Brussels IV succession regime are summarised below:

• Scope: The applicable law determines who the beneficiaries are, whether a family member can be disinherited, whether part of the estate is to be reserved for certain heirs, whether gifts made inter vivos are to be restored to the estate before it is transferred to the heirs, the transfer of ownership of assets to the heirs, the powers of the heirs, executors and administrators, the question as to who should be held liable for a decedent’s debts, and how the assets are to be shared amount the heirs. Brussels IV does not apply to estate or inheritance taxes, decedents’ civil status, the decedents’ property regime arising from marriage or registered partnerships, or matters concerning companies.

• Habitual Residence. The default rule is that the law that applies to the succession is  that of the state where the decedent was habitually resident at the time of his death unless the  decedent “manifestly” had a closer connection to another state, in which case the law of the other state governs the succession.

• Nationality. The testator has the option to designate the law of his nationality  to apply to the succession. The ruling body that handles the succession can refuse to apply certain provisions of the law of nationality if such are contrary to local public policy.  In the case of an election for the law of nationality, it is the internal law of the state that applies and not its conflict-of-law rules (which means that the foreign law may not refer a matter back to the referring jurisdiction).

• Renvoi: The doctrine of renvoi has been abolished as between Member States but still applies where the applicable law is that of a third state.

• Unity of Succession: A single law, whether it arises by habitual residence or designation, applies to the entire succession.

• Universal Succession: The law applicable to the succession, whether arising by habitual residence or designation, may be that of a Member State or a Third Party State.

• European Certificate of Succession (ECS):  An ECS is a standard from certificate that is issued by the authority dealing with the succession and is used by heirs, legatees, executors of wills and administrators of the state to prove their status and exercise their right and powers in other Member States.