Proposal for new EU Regulation on Wills

10/18/2009 - 07:18

The English text of the Proposal for this new Regulation has just been published. This will put to rest most of the dispute and conflict between different European laws on succession. Here is the link for anyone who would like to study this subject in more detail. Charlotte



The UK and Ireland decided in December 2009 that they would not opt-in to the Commission's proposal for an EU Regulation on succession law, but will continue to participate in negotiations.  The main point of the proposal is that the succession of a EU national should be governed by the law of their last habitual residence. Alternatively, a person will have the choice of expressly stating in their will that their national law should apply to their succession. The UK government is concerned mainly about the rules on “clawback” being applied to British nationals who die habitually resident in another member state where this system applies to lifetime gifts (for example in Italy, where any gifts or "donazioni" made by a person during his lifetime, which could include gifts into trust or to charities, are recalled into the estate on death to be redistributed amongst the heirs). Unfortunately this issue has already been seized on by the media and blown out of proportion (Daily Mail: British citizens could have their homes snatched from them on the orders of a European court under a new Brussels power grab!!!), even though a compromise or opt out of this particular clause of the Regulation could still be possible. The fact of the UK government remaining on the sidelines in this proposed Regulation is very worrying. British nationals (together with the Dutch and the Germans) are one of the biggest groups of Europeans, currently over 11 million moving to other member states of the EU (or buying property in other states), and the number of cross border successions are growing equally fast.  Whether the UK opt-in eventually or not, this Regulation will affect British citizens in Italy who will need to ensure they have a will choosing English (or Scots) law  as the applicable law, otherwise the rules of Italian law on forced heirship will apply to their estate.  Charlotte Oliver

  Charlotte, I have purchased a hoilday home in Italy and at present only have a will in the UK setting out how my estate should be dealt with. Do I need to have a seperate will drawn up in Italy to cover my property there  or does my UK will cover property owned in Italy. I look forward to your comment. Many thanks

Dear Paul,Yes, your English will should be recognised in Italy after your death. You should check how your English will is drafted, whether it refers to "all my property worldwide" or simply "my estate". If it states "my property at ................." or "my property in the UK", then you definitely need to either update your English will or make an Italian will.In some cases it is advisable to have a separate Italian will, only dealing with the Italian property, perhaps in cases where there is a large amount of property spread over two or more different countries. This is more for practicality than anything, as if there is only one original will in existence, your heirs will not be able to deal with the Italian property until a sealed grant of probate, with a sworn translation and Apostille is brought to Italy. There then may be arguments over the law applicable to the succession....and so on.Charlotte Oliver

  Charlotte if the UK will refers to "all my property worldwide", I am domiciled in the UK with "prima casa" status in Italy, does that mean that all inheritance tax will arise in the UK (and none in Italy)? Thanks for any advice.

Hello Charlotte  We are resident in Italy but only have an English Will.  Our Will was drafted before we moved to Italy and also before we actually got married.  We were living together when the Will was drafted and the content of the Will in regard to our wishes is still valid.  i.e. on either death everything is left to surviving partner, should we both die at the same time everything is left to my son (from previous marriage).  My husband has no children.  We have no assets in UK, everything is in Italy. Would this Will still be accepted or simply the fact that we have since married necessitate a new Will?  We have not been back to the UK since moving to Italy in 2006, thus not been in a position to sign anything in UK. Thank you.

In reply to by karenr

  I am under the impression that the UK 'WILL' rules ok?! BUT, we have a single A4 sheet of handwritten, named, signed and dated 'WILL' in Italy, effectively summarising our desire to have the UK 'WILL' to be the one that is carried out?

  Here in Ireland getting married invalidates a will and you would have to sign a new one. Don't know about Italy though. Also it occurs to me that if you dies first your estate wouldn't simply pass to your partner. Rather your son would be entitled to a share as I understand it.

  Can members start new posts for new topics? I have tried to start a new post on UK domicile and IHT to cover Grania's question, but I keep getting an error message! If your UK will covers "all your property worldwide", and you are considered domiciled in the UK according to the Inland Revenue rules (that you have been habitually resident in the UK for 17 out of the last 20 years), then you are liable to declare all your worldwide property for taxation in the UK at 40%. Italian law would also require you to declare the property in Italy for taxation, before the heirs could register the property into their name. This potential double taxation is dealt with by the UK/Italy Double tax treaty, where, summarising a complicated law very simply, you should receive a credit against your UK tax of the Italian tax paid (this needs to be confirmed by a cross border tax specialist according to the facts of each particular case).