Successions with cross-border elements are usually characterised by their high complexity. Succession law varies considerably from one EU country to another. The EU Succession Regulation comes into force later this year in August 2015. It applies to EU States, except Denmark, Ireland and the United Kingdom. Habitual residence is the default connecting factor, but a testator may choose the law of his nationality at death. No choice of venue is available to the testator.

These new uniform rules of Regulation (EU) No 650/2012 will make sure that:

  • a given succession is treated coherently, under a single law and by one single authority;
  • citizens are able to choose whether the law applicable to their succession should be that of their habitual residence or that of their nationality;
  • parallel proceedings and conflicting judicial decisions are avoided;
  • mutual recognition of decisions relating to succession in the EU is ensured.

However, the initiative in no way alters the substantive national rules on successions.

The following issues continue to be governed by national rules:

  •  who is to inherit or the share of assets going to children or spouses;
  • property law and family law in an EU country;
  • the tax arrangements for assets making up a succession.

For example, a German testator leaves a restricted interest to A, but confers a subsequent interest on B, it is unclear whether the same law will apply to both dispositions. The Regulation will make changes in several countries – notably changing the law governing dispositions of real estate, but it does not generally alter the law applicable to wills executed before 17th of August 2015. German and French testators will no longer be able to escape forced heirship rules by acquiring English real estate, but English testators will be able to choose English law to govern their dispositions of real estate on the Continent. Existing bilateral agreements will prevail. There are many such agreements, some of long standing. Cross-border succession planning remains a minefield. The Regulation will solve a number of problems but create new ones.