With the exception of the UK, Ireland and Denmark, from August 17, 2015 the EU Succession Regulation (650/12) comes into effect. Known as ‘Brussels IV’, it was introduced on July 4, 2012, with a period of just over three years for member states affected by it to prepare for its implementation.
Instead of the member states individually deciding whether to apply their own succession laws, there is to be a uniform approach to that task by the 25 European countries.
The objectives of Brussels IV are: (i) to remove obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications; (ii) to enable EU citizens to organise succession matters in advance; (iii) to ensure the rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession.
Brussels IV aims to ensure that only one law determines how an estate is dealt with across the Brussels IV zone:
▪ The default position is that the law of the state in which the deceased was “habitually resident” applies to succession to assets across the Brussels IV zone;
▪ The state of habitual residence need not itself be a Brussels IV state;
▪ If, however, the deceased was “manifestly more closely connected” with another state, the law of that other state governs succession;
▪ The deceased may choose the law of his/her nationality to apply to succession to all of his/her assets across the Brussels IV zone;
▪ Where a person has more than one nationality, he/she may choose the law of any one of them;
▪ The selection of the law of nationality must be made expressly in a will or analogous document;
▪ Generally the selection of the law of nationality means applying the domestic succession laws of that state to succession to assets in the Brussels IV zone.
The principal provisions of Brussels IV are:
Jurisdiction: the courts of the member state in which the deceased had his/her habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. That means that no succession issues are referred back to the courts of another country.
The law: the law applicable to the succession as a whole shall be the law of the state in which the deceased has his/her habitual residence at the time of death.
Altering the applicable law: anyone can change the law under a choice of law provision in Brussels IV, provided he/she chooses the law of a state whose nationality he/she possesses at the time of making that choice or at the time of death.
Change of jurisdiction: where the deceased has chosen the law of his/her nationality, the parties concerned can also agree that the courts of a member state whose law has been chosen shall have exclusive jurisdiction to rule on any succession matter. Further, courts with jurisdiction can decline that jurisdiction in certain circumstances. In such an event, jurisdiction will remain with the courts of the member state where the deceased had his/her habitual residence at the date of death.
Recognition, enforceability and enforcement of decisions: a decision given in a member state shall be recognised in the other member states without any special procedure being required. While there are grounds for non-recognition, there can be no review of the substance of a decision. There is to be a European certificate of succession to give Pan-European status to the decisions of a competent court.
In our view anyone who:
▪ lives in;
▪ owns property in; or
▪ is moving to or from a Brussels IV state;
Should obtain advice on how Brussels IV and the laws of the relevant states may impact upon his or her succession planning.
In general terms, we recommend that UK nationals make elections that their assets located in the Brussels IV zone should pass according to English law.
Where an individual is a national of a Brussels IV state but is also a British national it may be helpful to elect that English law should govern succession to assets located in the Brussels IV zone. This would provide freedom for the individual to decide how assets should pass.
The unknown factor at present is the attitude of continental European courts to that.
By Dr Eduardo Serra Jorge
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
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