16 March 2014

European regulation will change international inheritance law

By Marieke Morshuis

Anyone who has a second home or a holiday home in Spain and ends up spending more time in Spain than in the Netherlands would be well advised to make proper provision for their estate.

If you have assets or property in more than one European country, estate planning can prove complicated.

Hardly any conventions have been signed in Europe regarding the devolution of estates – but things are set to change. On 17 August 2015 a regulation will definitively take effect in Europe that directly applies in almost all EU Member States (with the exception of Denmark, Ireland and the UK). Among other things, the regulation will reduce the complexity of international estate planning.

What does this change mean?

The regulation will apply to the estates of people who die on or after 17 August 2015. It introduces standard international rules of private law in the sphere of inheritance law, making the process of devolving and winding-up international estates far more straightforward and less expensive for EU citizens.

Current situation

At present, there are three basic, global principles that can apply to hereditary succession if a person has not made a will:

  • the deceased’s nationality;
  • the deceased’s place of residence at the time of his or her death; and
  • the country in which the property (owned by the deceased) is situated.

Currently, in the Netherlands, nationality in principle determines which law of inheritance applies to the hereditary succession, but this is set to change after 17 August 2015.

Changes brought about by the European succession regulation

The introduction of the regulation will soon make it clearer which law applies within Europe to the estate of a person who dies without making a will. The regulation will only be applied if there is no clarity regarding the applicable law in a particular situation.
In principle, the law of the country in which the deceased person has his (habitual) residence at the time of death will apply. Should the deceased person demonstrably have close ties with a country other than that in which he had his habitual residence, the law of that country will be applied.

Example

An expat with Spanish nationality lives in the Netherlands. He dies in the Netherlands without making a will. The estate is, in principle, covered by Dutch law. However, this expat with Spanish nationality conducted most of his family life in Spain and spent his holidays and many of his weekends in Spain. In that situation, it may be that, if the expat with Spanish nationality (demonstrably) had closer ties with Spain, Spanish law will apply.  

Unity principle

Under the new rules, the location of the assets that make up the estate is no longer relevant; the regulation expressly elects the principle of unity, whereby the applicable law applies to the entire estate.

Certificate of succession

The paperwork will also be simplified compared with the current situation. This is because the regulation also creates a European certificate of succession, without (as is currently the case) any additional authentication.

Jurisdiction

Under the new rules, in principle the court of the deceased’s habitual residence has jurisdiction. If the deceased himself has chosen to apply the law of a particular country, the heirs and any other parties concerned may agree that the courts of that country also have (exclusive) jurisdiction to decide on all matters relating to the succession. So, if the Spaniard in the example has stated in his will that Spanish law applies, the family may decide to nominate a court in Spain to wind up the estate.

Choice of law

Although in future you will still be able to choose which law applies to your estate in your will, that choice will be limited to the law of the country of which you have nationality. This restricts the freedom of choice that currently exists in the Netherlands. Soon you will no longer be able to choose the law of your habitual residence in your will but, if you made the choice before the regulation enters into force on 17 August 2015, your choice will still be valid. Naturally, this choice must have been made in accordance with the rules of international private law. An inheritance lawyer will check this for you.

A review of the inheritance law that applies to your possessions can be undertaken as part your estate planning, the process of drawing up a plan in which you make the most effective provision possible for your estate, sparing your next-of-kin any worry and problems.

I will be happy to advise you on this.

Marieke Morshuis

Marieke Morshuis

Lawyer / associate partner

Marieke Morshuis has a large wide-ranging inheritance practice.

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