Update on EU cross-border succession Regulation

07/05/2011 - 08:23

I am following with much interest the progress of this new Proposed Regulation, as it will have a great impact on foreign residents in Italy and potentially also British citizens who are resident in the UK but have property here. Ideally it should resolve the current conflict between Italian and English law as to which law applies to the succession which causes confusion over who will be the beneficiaries of an estate, but as the UK (and also now Ireland and Denmark) has chosen not to opt-in it is possible that it will create greater confusion. It seems that there is now an impasse because of disagreement between other member states...The main point of argument is, as the new Regulation will make the place of a person's "habitual residence" the applicable law to a succession, and also the forum for disputes between heirs, how is habitual residence to be defined? At the moment it is decided by the courts on a case by case basis. The UK's main difficulty with the Regulation is the fact that British citizens living in Italy may then find that donations/gifts they had made in their lifetime can be subject to "claw-back" after their death by heirs in Italian law, so that the value of the donation is added to the estate. And other member states also now think that citizens (of mainly civil law states) will try to bypass clawback being claimed by their heirs by going to take up residence in the UK so that their succession will be governed by English law!If a person does not want the law of their habitual residence to apply to their succession, they will need to write a will expressly choosing the law of their nationality.Here is a link to the Council of Ministers' discussion paper for those interested in the debate:http://register.consilium.europa.eu/pdf/en/11/st11/st11067.en11.pdfCharlotte


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