Analyses & Studies
Explainer: The EU Succession Directive
The EU Succession Directive allows people with French and English connections to elect English law to apply to their estate in France by their English will. Careful consideration can provide useful for those with Franco-British connections, says Hilesh Chavda, Partner at the law firm Spencer West
How is it possible to apply English law to an estate in France?
People were usually advised to have wills in France and England to cover the assets in each jurisdiction. The reason is that under normal conflict of law rules French and English laws govern real property located in each respective country. Therefore, it is best to have two wills.
However, this may not always be the best option since EU Succession Regulation (EU 650/2012), known as Brussels IV, was introduced in 2015. The aim of Brussels IV is to unify succession laws across EU member states. It means that the laws of one country only will govern how your European wide estate pass and the other countries have to respect and apply the relevant law.
What does the Brussels IV regulation do?
In essence, Brussels IV says that by default, your European wide estate devolves under the laws of the country in which you are habitually resident at your death (even if your assets are located in another European country). However, if you are a national of another country, you can elect the law of your nationality to apply to your European wide estate instead.
This is significant because, under the normal conflict of law rules, the law of the country where real property is located applies. However, with Brussels IV this can be overridden.
Where there is a UK connection, there is a fly in the ointment. The UK has not opted into Brussels IV. However, it can apply indirectly to be of assistance.
Why should you bother having one law apply to all your assets?
Where you have UK and French assets, it is easier to have one law governing all your assets.
Another reason is that under English law you can leave your assets to whomever you want. However, France has forced heirship rules where a certain proportion of your assets must pass to family. You might want your assets to be shared differently. Therefore, you might want English law to apply to your French assets so that you can leave your assets to whomever you want.
Advice
- UK nationals with French real property
You can elect (in your Will) for English law to apply. In this case, France will be bound to apply English law to French assets (including real property).
If you are habitually resident in France and do not make a will which elects English law to apply, French law (including forced heirship rules) will apply to French real property. Therefore it is important to make an election for English law to apply to all your assets.
- French nationals with French real property
If you are habitually resident in France at the time of your death, French law will apply. You can make a will to elect English law but Brussels IV will not help as there is no connection to England. The normal conflict of laws will apply.
However, where you are habitually resident in England, France should apply English law to all your assets including French real property. For this to be effective it is best to have an English law will with an election for English law to apply.
- French nationals with English real property
For completeness, it is good to mention this scenario. As the UK has not opted into Brussels IV, it does not help. England will look to the normal conflict of law rules and apply English law to English real property regardless of your habitual residence or any election for French law to apply.
- Brexit
With any European dimension and the UK, Brexit has to be considered. However, as the UK has not opted into Brussels IV, the position will not change where there is a UK connection.
- What to do?
This is a complex area. It is important to obtain expert advice from those who understand the international elements.
If you have already made a will without considering Brussels IV, you should have this reviewed to see whether it needs changing. This is particularly the case if you want English law to apply because, for example, you want to avoid the French forced heirship rules.
If you do not have a will covering all your assets, you should get one done sooner rather than later and ensure it considers the impact of Brussels IV.