Traditionally, if you had assets in an EU country, it was generally recommended to take legal advice in that country on making a Will there. However, this all changed on 17 August 2015 when the European Succession Regulation (650/2012) (“the Regulation”) came into effect. The Regulation seeks to harmonise succession rules across the EU and allow EU citizens the ability to choose the law of their nationality to govern the succession to their EU assets, as opposed to the law of the country in which those assets are situate. This is important because many EU countries, such as France and Spain, have “forced heirship” rules which dictate to whom your property in that country must pass (generally to children and in some circumstances, the surviving spouse).
The UK has not opted in to the Regulation; however, this does not prevent UK nationals from benefitting from it if they own assets in an EU country that has opted in (all of the EU with the exception of the UK, Ireland and Denmark).
Clients who are English or Welsh nationals can make an election in their English Will for the law of England and Wales to govern the succession to their EU assets. A specific clause in your Will is needed to do this and, in this way, you can take control over who inherits your EU assets rather than allowing the applicable country’s forced heirship rules decide. A separate Will in the country where the assets are situated should not be needed.
Brexit will not change the position. The opportunity for UK nationals to make an election under the Regulation remains despite the UK leaving the EU. The key factor is that the assets in question must be situated in a signatory EU country.
If you have not already prepared a Will for your EU assets, or your Will does not take the Regulation into account, we recommend that you take advice on whether you could benefit from the Regulation and make an election for the law of England and Wales if applicable. It only requires one clause in your Will and such an election could have a huge impact on the succession to your EU estate. If we can assist with preparing a new Will, or updating an existing Will, to include an election under the Regulation, please contact us.