New EU law on succession
The 2005 Green Paper on Wills and Succession recommended that the conflicting succession rules in many European countries should be harmonised by a new EU Regulation.
A Regulation is a European law which is directly applicable to all member states, therefore once introduced it overrides national law.
The current conflict of law means that when someone dies in another member state than that of their nationality, leaving property in other states, and perhaps having residence in more than one country, more than one set of rules could apply to the succession. For example:
Italy’s rules on private international law state that succession is governed by the law of the deceased’s nationality, although they can expressly request in their will that Italian law should apply.
The rules of English law state that a person’s immoveable property (their houses) is governed by the law of the place each one is situated, but the moveable property (bank accounts, jewels, paintings, cars) is governed by the law of the person’s domicile.
French law states that French succession law will apply to the inheritance of real estate in France, regardless of nationality.
The new draft Regulation will propose that one “connecting factor” is applied in the case of succession, where the law of more than one country might otherwise be applicable, ie if a Dutch national died in Italy leaving property in France and the UK. That “connecting factor” is likely to be by default the “last habitual residence”. However, in making a will a person should be able to choose, if they wish, to apply their national law to their succession.
This will change the current private international law rules on succession in Italian law, where the national law of the deceased applies. It should also end the problem English law causes of separating immovable and movable property, although there has already been opposition to this from the UK.
The draft Regulation should be published later in 2009 (was due this summer but running late)
The new Regulation is expected to be in force by 2012. It is now being referred to as the "Brussels IV Regulation".
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There are 15 replies to this post
UPDATING WILLS
Very interesting information, Charlotte. Thank you. Would it be advisable to update existing wills so that they will comply with the new Regulation as soon as this is in its final form and approved? Could there be any conflict in the case of existing wills not complying? I can see quite a few grey areas. Anyway, this could be the perfect time for anyone not having a proper will to look into the matter. Otherwise, your beneficiaries only inherit a big headache.
Admirable clarity
Thankyou very much, Charlotte, so many legal explanations are couched in language that makes it hard to understand but you write clearly and succinctly and it is much appreciated.
Updating wills
I assume that only wills made after the Regulation comes into force will be subject to the new rules. There should be no conflict and no need to change an existing will. As soon as the draft Regulation comes out in a few months the answer to this will be clearer.
The Green Paper already provoked many comments on grey areas and perhaps that is why the Regulation is taking so long to draft.
Italian Private International Law
Hello Charlotte
Thank you for starting this much needed forum. Your overview of the present draft situation was informative.
Given that fact that Italian private international law changed in 1995 reinstating citizenship as a reference for applying succession law, I ponder how much resistance Italain legislators will pose to the proposed changes referenced in your introductory text.
Distinti saluti
Thank You
Thank you so much for the info, much appreciated
Inheritance Tax issues
I've been wondering whether it may be advantageous to transfer ownership of my Italian property to my two children immediately. I fully understand the UK implication of such a transfer, as well as the obvious risks (divorce etc), but am totally ignorant of any implications here in Italy.
Hello The simple answer is If
Hello
The simple answer is
If the proeprty or other assets are in Italy, succession law applies even if your citizenship and residence is another country. In fact our clients receive title to Italian property even though they reside in the US, Canada, Australia, Argentina, etc
When Italian succession law applies
In reply to Gerbillo, Italian succession law (ie the division of the estate into strict quotas between close relatives whether or not there is a will) applies to Italian citizens AND can apply to non-Italians who are resident in Italy, whether or not they have property in Italy, if they have chosen expressly in their will that Italian law should to apply to their succession.
italian law
sorry your answer "the simple answer" does not appear simple...you do not say which succession law applies ... it to me reads like your saying Italian laws apply which to me conflicts with the initial opening staments to this thread which says the owners national laws apply
also the last bit... do you mean someone can inherit as a result of having an italian relative leaving them a property... which would have little to do with problems regarding non italians because the inheritance laws and legal rights of italian families are guaranteed under the law here ... so would make little diference where relatives lived... either within italy or not...
sorry just do not understand the points made
I'm going to go with what
I'm going to go with what Charlotte (an actual lawyer) is telling me and skip italianlaw's "paralegal" version.
How does the law apply to
How does the law apply to common law folk. Been with my partner for 35 years. House here in his name. If he "pops his clogs" what happens without a will?
S
Common law partners
Hi Pilchard. Good question. Would any one like to volunteer to start a new thread on "inheritance rights of common law partners"? I think this thread is deviating a bit from the topic of new EU law...!
Many thanks Charlotte
So nice to see clear and succinct commentary.