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The EU regulation on

succession and wills

Roland Krause

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I. Regulation 650 / 12

II. Applicable law

III. Competence

IV. Tax issues

V. Outlook – Practical cases

Content

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I. Today

General rule in Europe:

Estate is governed by the law of nationality

No contracts on sucession, no joint wills, no trusts in most

European countries, forced heirship rules ...

US- European inheritance taxes: pay twice

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I. Regulation 650/2012

Regulation (EU) No 650/2012 of the European Parliament and of the

Council of 4 July 2012 on jurisdiction, applicable law,

recognition and enforcement of decisions and acceptance and

enforcement of authentic instruments in matters of succession

and on the creation of a European Certificate of Succession

Key points:

-> in force 17 August 2015

-> applicable law : habitual residence, not nationality

-> choice of law towards law of nationality

-> competent court: last residence

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US citizen residing in Antibes, France

• NY assets, WI assets, french property

2 children in the US from first marriage

Second wife is french citizen

• He dies in France without last will

-> rights of the spouse, the children ?

Example 2016 intestate

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Article 21

General rule

1. Unless otherwise provided for in this

Regulation, the law applicable to the succession

as a whole shall be the law of the State in which

the deceased had his habitual residence at the

time of death.

Governing law

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1. A person may choose as the law to govern his

succession as a whole the law of the State whose

nationality he possesses at the time of making

the choice or at the time of death.

A person possessing multiple nationalities may

choose the law of any of the States whose

nationality he possesses at the time of making

the choice or at the time of death.

Art.22 Choice of law

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1. An agreement as to succession regarding the

succession of one person shall be governed, as

regards its admissibility, its substantive validity

and its binding effects between the parties,

including the conditions for its dissolution, by the

law which, under this Regulation, would have

been applicable to the succession of that person

if he had died on the day on which the agreement

was concluded.

Art.25 Erbverträge

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Article 4

General jurisdiction

The courts of the Member State in which the

deceased had his habitual residence at the time

of death

Article 7

In case of choice of law -> courts of that country

Competent court

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Conflicting points

Life insurance outside of estate

Rome I Regulation

-> considered gift inter vivos

Spousal rights as a non-heir

-> usufruct, life long use of family house

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TAX

Double taxation treaty

-> only for income, not for estates

France – USA 1978, 2004:

DOUBLE TAXATION

Taxes on Estates, Inheritances, and Gifts

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Conclusion New regulation opens up new chances for creative

planning, but also has risks not yet foreseeable

- Forced heirship, trusts

- Still two proceedings

- Taxes (not yet) harmonized – double imposition