With the spirit of bringing about ‘measures aimed at ensuring the compatibility of rules applicable in Member States concerning conflict of laws and of jurisdiction’ the newly EU enacted “EU Succession Regulation” (“the Regulation”) 2012 has brought about much needed legal certainty around succession law in the EU.
The new rules are binding, applying to the succession of those who die on or after 17 August 2015, in all EU Member States except for Denmark, Ireland and the United Kingdom.
Whereas before there was confusion and complexity surrounding the varying succession law from one EU country to another, the new rules ensure cross-border succession is treated coherently, by one single court and applying one single law.
The Regulation caters for instances where an individual has ties to the EU by:
- Habitual residence;
- EU nationality;
- Owning assets in an EU Member State.
In principle, the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death, but citizens are able to choose whether the law applicable to their succession should be that of their nationality.
Where the deceased had no residence in an EU Member State but has left assets in such state, the respective EU Member State has jurisdiction to rule on the succession if
- the deceased had the nationality of that Member State at the time of death; or, failing that,
- the deceased had his previous habitual residence in the respective Member State, provided that, at the time the court is seized, a period of not more than five years has elapsed since the habitual residence changed.
In the instance where neither (i) or (ii) apply, but the deceased has left assets in a Member State, the jurisdiction is limited to rule on the assets located in the respective EU Member State.
Decisions relating to successions in one EU country are recognised and enforced in other EU countries.
There is also what is called a ‘European Certificate of Succession’ (ECS) that enables heirs, legatees, executors of wills and administrators of the estate to prove their status and exercise their rights or powers in other EU countries.
Importantly, however, the new rules do not alter the substantive national rules on successions, and issues relating to beneficiaries, property law and family law in an EU country, and tax issues related to the succession assets is still governed by national law.
Even though not a Member State, the Regulation will affect estates of persons residing in Switzerland and Swiss nationals living in an EU Member State in certain circumstances, such as if the deceased person was a Swiss national and had his last habitual residence in an EU Member State, and if the deceased person was residing in Switzerland and leaves assets in an EU Member State.
For an additional information, kindly contact Kate Holland at firstname.lastname@example.org/ocs or your usual Osiris contact.