The overlap of the laws of succession in different countries (e.g. in the country which you live and the country in which you own property) has caused a great deal of confusion and resulted in property owners putting two Wills in place - one in the country which they live in and the other in the country where they own property. Succession to property in Europe is now set to change
EU Regulation No 650/2012 (commonly known as "Brussels IV") was passed in 2012, but will only apply to estates of individuals who die after 17th August 2015 in all of the EU Member States except the UK, Denmark and Ireland, who have opted out. Although the UK has opted out of Brussels IV, the Regulation will still affect those who are resident in the UK with assets in a member state which has chosen to opt in e.g. those resident in the UK with assets held in Spain.
How will Brussels IV help?
Brussels IV is an attempt to harmonise the approach to succession across the EU which is good news for anyone in Scotland who owns European property. The default rule introduced by the Regulation is that the law of the state in which the deceased was "habitually resident" applies to succession to assets across the Brussels IV zone (e.g. in Europe).
In some instances, it may not be clear where a person is "habitually resident". The Regulation therefore provides that people with property in a Regulation State may elect in their Wills that the law of their nationality should apply to the succession of their relevant EU property so as to clarify the position.
What should you do now?
If you own European property you should be aware that, as of 17th August 2015, there will be no requirement to have an additional Will in the country where the property is held.
You should review any existing Will in order to make elections that any European property which you own should pass in accordance with Scots law. It is important that this wish is made expressly in a Will and, if done so correctly, means that your European property will pass in accordance with Scots law and your instructions.
The introduction of Brussels IV is certainly good news for those who own property in Europe and will make it easier for European property to pass in accordance with your wishes, and not in accordance with the succession laws for the state in which the property is held.
If you would like to discuss this further, or would like to update your current Will, please contact us.
