The European Inheritance Regulation will come into force on 17 August 2015 and have direct effect in all EU Member States.
There are currently three different principles applicable: the nationality of the deceased, the residence of the deceased at the time of death and the country where the property (owned by the deceased) is situated. The law of the country of the nationality of the deceased determines the applicable law of inheritance. The residence at the time of death of the deceased and the country where the property is situated, in principle determine the place where the inheritance tax return should be declared.
Applicable law after entry into force of the European Inheritance Regulation
The regulation provides, among other things, which law is applicable to the inheritance of someone who does not have a will. The regulation will only be considered if it is not clear which law is applicable in a given situation. Under the regulation, the general rule is that the inheritance law of the country where the deceased had his or her habitual residence at the time of death is applicable. As an exception, if the deceased clearly had closer ties with a country other than the country of habitual residence, then the law of that country is applied.
The regulation explicitly stipulates the unitary system: the applicable law governs the entire estate, regardless of where the assets of the estate are located.
Certificate of Inheritance
The regulation also creates an European Certificate of Inheritance without further authentication, as is the case now.
In respect of jurisdiction this in principle means that the court of the habitual residence of the deceased at the time of death is competent. The heirs and any interested parties may reach an agreement that if the deceased made a choice for the application of the law of a particular country to the inheritance, the court of that country shall have exclusive jurisdiction in respect of all pertaining inheritance issues.
Choice of law
The possibility of making a choice for a particular law in a will remains open. However, the choice is limited to the law of the country of which the deceased at the time of making the will or death was a national resident. Presently this is a limitation of the freedom of choice in The Netherlands. As soon as the regulation enters into force a choice for the law of the habitual residence of the deceased is no longer possible.
Choices of applicable law that were made before the regulation enters into force on 17 August 2015 remain valid in all cases provided that the choices were validly made and in accordance with private international law.
If you have questions about the international law of inheritance or would like to discuss a case, please contact the Family and Inheritance section.