Many of our clients are nationals of one country but resident in another being owners of assets or real estate in many different states of European Union or third countries. It is important to underline that successions with a cross-border elements are sometimes complicated because involve more than one country and the law varies considerably from one country to another.
Currently, the number of families with properties in another country, or citizens who change their habitual residence is increasing. In these cases, appear some important questions about the heritage succession. Let’s take an example: a German citizen who lives and deceases in Spain. He owned one property in Berlin, and one property and one bank account in Barcelona. In this type of situation, a lot of questions arise: Which state has jurisdiction to hear a succession and which law is applicable this succession? Can the testator choose the applicable law to his succession?
The new Regulation (EU) No 650/2012 which shall apply with full force and effect from 17 August 2015 will cause important changes to the present legal situation and will make easier to handle the international successions.
In accordance with the Regulation, the default position is that the law applicable to the succession as a whole shall be the law of the state in which the deceased had his habitual residence at the time of death. In our example, by default, the applicable law will be Spanish law because Spain is the decedent’s habitual residence at time of death.
However, the Regulation (EU) No 650/2012 allows the testator to submit the whole of his succession to the law of the State, whose nationality he possesses at the time of making the choice or at the time of death.
This choice must be done expressly in a declaration in the form of a disposition of property upon death which can be a testament in Spain.
If we return to our example, this possibility of choice of the applicable law would permit to our German citizen to choose his national law (German law) as the applicable law to the succession.
The Regulation is not applicable in Denmark, Ireland and the United Kingdom, but affects the nationals of the previously mentioned states who have their habitual residence in other EU member states. For example, by the general rule, if the person national from the United Kingdom is resident in Spain, then Spanish law would be applicable to succession as a whole.
However, if this citizen makes a testament in Spain and choices the national law as an applicable law to his succession, the UK law will be applicable.
It is also important to underline that any law specified by the Regulation (EU) No 650/2012 shall be applied whether or not it is the law of a member state of UE.