Which Country’s Succession Laws will Apply to Your Estate?

In the UK, we have fairly straightforward succession laws. Each individual has the right to decide how they would wish their estate to be dealt with in the event of their death. Though there are legal protections in place to protect certain individuals from being treated unlawfully by a Will, for the most part we have the freedom to do whatever we wish with our estates.

However, this is not the case everywhere. Many countries, both elsewhere in Europe and further afield, have much stricter rules on succession. In these countries, the law can determine what happens to much, or even all, of your estate after your death. 

If you have always lived in the UK and don’t hold any assets overseas, this is not something you will need to consider. However, if you’re currently resident in another country, or if you hold assets such as property, bank accounts or collectibles overseas, it may be prudent to consider which country’s succession laws will apply to your estate.

When might overseas succession laws apply?

Overseas succession laws may come in to play if you have what’s known as a cross-border estate, which is usually where there is some sort of connection between you and two or more countries. There are various reasons why an estate can be considered to fall into this category. It might be because:

• Assets belonging to the estate are held in two or more countries.
• The person who owned the estate was resident in a country they did not consider their legal domicile.
• The person who owned the estate held multiple nationalities. 
• The person who owned the estate had residences in multiple countries. 

As this is such a complex area of the law, we’d always recommend seeking advice from an experienced solicitor if you think your estate might be considered a cross-border estate. 

What impact might this have?

There are a range of impacts overseas succession laws might have on your estate. Many territories have forced heirship laws, which mean that who inherits from your estate will be determined by the state, no matter what you might have recorded in your Will. Usually, this will mean that pre-determined shares of your estate will pass directly to your closest family members, whether or not this is what you would’ve chosen. 

You’ll also need to be careful about any unintended consequences regarding the inheritance tax that your estate will be subject to. Just because the laws of a country apply to how your estate is administered, it doesn’t necessarily mean that same country’s laws will determine any inheritance tax that’s payable. Often, cross border estates are subject to tax laws and succession laws in different countries, which means things can get very complicated.  

Which country’s succession laws will apply?

The question of which country’s succession laws will apply to your estate is a nuanced question and the answer can vary based on a wide range of factors. 

Often, the succession laws your estate is subject to will be determined by where you are habitually resident at the time of your death, although this isn’t always the case.  In many countries, the accepted practice is that any ‘moveable’ assets (such as money in bank accounts, art, shares, etc) should be administered in accordance with the succession laws in the country of residence, while any ‘immovable’ assets (such as property and land) will be subject to succession laws in the country in which they are located. However, not all countries accept this practice. 

When determining which country’s laws your estate will be subject to, you will need to consider factors including:

• Your legal domicile.
• Your domicile of origin.
• Your country of residence.
• Any other countries in which you hold assets.
• What kind of assets your estate is made up of.
• What your personal circumstances are.
• Which organisations and institutions are responsible for holding those assets.
• Whether the country in which your assets are held are signed up to the European Union’s Brussels IV regulations. 

In many cases, you will also need to carefully consider the combination of countries relevant to your estate and how their succession laws interact with each other. It may be that different parts of your estate will need to be administered according to different laws, and how these jurisdictions relate to each other will be very important.  

Is there anything you can do about this?

If you think your estate is likely to be subject to the succession laws of multiple countries, we would definitely recommend seeking advice from a specialist solicitor. An experienced probate solicitor will be able to carefully consider the full picture and liaise with legal professionals on your behalf in any territories that may have an impact on your estate. 

Doing this will mean that a solicitor is able to give you personalised advice on any overseas succession laws that might apply to your estate, how they might impact any Will you’ve previously put in place and whether they are any legal precautions you may wish to take as a result. 

In some cases, a solicitor may be able to recommend steps you can take to determine which jurisdiction your Will should be administered under. It may be possible for you to use your Will to elect the law of your nationality to apply to the devolution of your worldwide estate, even if you no longer live in the country you are a national of. For example, if you are resident in a county that is signed up to the EU’s Brussels IV regulations, you have the right to state your intention in your Will that the rule of your own nationality be applied to your estate. This is true even if you are a national of a non-EU country such as the UK. 

In situations such as these, it will be really important to ensure your Will is kept up to date. Your solicitor will also be able to help you consider whether having one Will best suits your needs, or whether it might be better to have a Will in each country with which you have  connection. The right choice for you will depend on your individual circumstances, such as what type of assets you have, how much you have to leave, who you wish to benefit from your estate and what your overall tax position is. 

How Roche Legal can help

We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:

• Trusts and Estate Planning
• Wills
• Probate and Estate Administration
• Contested Probate and Will Disputes
• Powers of Attorney
• Court of Protection matters
• Presumption of Death Applications
• Missing Persons Guardianship Applications