In England and Wales the usual position on death is that your assets will be distributed in accordance with your Will (if you have made one). However, this is not necessarily the case if you have assets located elsewhere in Europe. A significant number of European countries, including France and Spain apply “forced-heirship provisions.” This means that the asset could pass, according to the law of the country in which it is located to a fixed “heir” and ignore the terms of your Will.
What is the new Regulation?
On 17th August 2015, a new EU Regulation, Brussels IV (‘The Regulation’), came into force creating significant changes to EU Succession law, allowing EU-based property owners to avoid this potential pitfall.
Under this Regulation, any national of England and Wales who has property in any participating EU country can make an election in their Will stating that they want the law of England and Wales to govern what happens to their foreign property on death. An election is a clause selecting which law you choose to govern your estate. This avoids the onerous “forced heirship provisions” and allows your estate to be administered in accordance with the terms of your Will.
How could this effect you?
An example would be if you were a British national living in England but had a house in France. If you did not make an election in your Will, then your house would likely pass in accordance with French law upon your death and would therefore be subject to forced heirship. However, if you included an election in your Will stating that you choose English law to govern your estate, France would apply English law to your house, enabling you to leave it to whoever you wanted to, as set out in your Will.
Updating your Will also gives clarity as to who will administer your estate. Whereas in most EU countries the beneficiaries administer the estate, in England and Wales you can choose your executors and they can be different people to your beneficiaries.
How can we help?
If you have a foreign EU-based property, then we strongly recommend reviewing your existing Will to ensure that your estate will pass to your chosen beneficiaries.
Our Wills, Trusts and Probate lawyers can advise you on amending your Will, or, if you do not have a Will, assist you with putting one in place.