The EU Succession Regulation applies in 25 of the 28 EU Member States:
- Ireland and
- the United Kingdom are not parties to the Regulation.
However if there is an English national with assets in Malta or who is domiciled in Italy, for instance, then the EU Succession Regulation can still be relevant.
It is a fact that with the increased mobility of persons, the reality is that instances of estates spanning multiple jurisdictions with heirs, also located in various jurisdictions, have become much more common. The purpose of the Succession Regulation is to harmonize the conflict of laws rules of the EU Member States.
Until now, succession matters depended on the conflict of law rules of the various countries. By way of illustration:
- in Germany one would have to look at the country of nationality at the moment of death;
- in Switzerland one would look at the domicile of the deceased at the moment of death;
- whereas in the UK and Malta for movables one would look at the domicile whereas for immovables one would look at where property is situated.
Matters could become very complex when there are assets all over the world, dual nationalities and various countries that could possibly claim domicile.
The EU Succession Regulation aims to simplify matters post-death by providing a framework for determining which country will have jurisdiction over an EU estate and which country’s succession laws will apply to those assets. In this way, it aims to provide certainty thereby simplifying matters (and, thereby, containing costs).
The Regulation will apply to the succession of persons who die on or after 17th August 2015.
The EU Succession Regulation will apply to the succession to the estates of deceased persons (Art. 1 para. 1 sentence 1) and shall include all civil law aspects of this succession. It will cover all forms of transfers of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession (Art. 3 para. 1 (a)).
‘Disposition of property upon death’ means a will, a joint will or an agreement as to succession (Art. 3 para. 1 (d)).
The following are, however, excluded from the scope of the EU Succession Regulation (Art. 1):
- Revenue, customs or administrative matters of a public-law nature;
- Areas of civil law other than succession, e.g. questions relating to matrimonial property regimes, including marriage settlements, as known in some legal systems, to the extent that such settlements do not deal with succession matters, and property regimes of relationships deemed to have comparable effects to marriage;
- Maintenance obligations other than those arising by reason of death;
- The formal validity of dispositions of property upon death made orally;
- Property rights, interests and assets created or transferred otherwise than by succession, e.g. by way of gifts;
- Questions governed by the law of companies and other bodies, corporate or incorporated;
- Questions relating to the creation, administration and dissolution of trusts;
- The nature of rights in rem;
- Any recording in a register of rights in immovable or movable property.
Approach of EU Succession Regulation
Essentially, in the 25 participating EU Member States, the EU Succession Regulation obliges them to look primarily to the courts and the laws of the country of the deceased’s habitual residence, unless the deceased made an election for the law of their nationality to apply.