At present, the European countries each apply their own national rules regarding inheritance law. That will change from 17 August 2015 with the coming into effect of the European Succession Regulation that applies to cross-border estates of individuals who die on or after the aforementioned date. It is expected that the regulation will not only reduce inheritance and estate settlement costs for EU citizens, but above all simplify the process. It will, moreover, create greater opportunities and facilities for Estate Planning.
The regulation, which has been adopted by all EU Member States with the exception of Denmark, Ireland and the United Kingdom, provides uniform IPR rules for succession law. As a result, it is no longer relevant at which EU court the succession proceedings are filed. Issues provided for by the regulation include the choice of law governing succession and the settlement of cross-border estates. Also, the regulation provides for the jurisdiction, the recognition and execution of judicial decisions as well as the acceptance and execution of authentic deeds and judicial settlements. Finally, the regulation introduces the European Certificate of Succession.
As regards one of the core subjects of the regulation, namely the applicable law, the principle is that the succession law applies of the country where the deceased had his normal place of residence. Individuals have a certain degree of freedom in making a choice of law. At present, this could, for example, be the laws of the last regular place of residence or stay at the time of making the choice of law, but from 17 August 2015 this choice is limited to the laws of the country of nationality of the deceased either at the time of making the choice or at the time of death. As the choice of law will be restricted from 17 August 2015, testators are advised before that date to closely study the consequences and lay down a choice of law if required. The revocation of a will after 17 August 2015 may have undesired adverse consequences if you, by doing so, also revoke a choice of law that cannot be made after that date.
Despite the lack of harmonisation of inheritance tax in the various EU countries, the regulation makes no provisions in this respect. What does this mean for international estates? The Netherlands applies the residence principle when it comes to inheritance tax: if the deceased lived in the Netherlands, then the heirs (irrespective of where they live) must pay inheritance tax in the Netherlands on the entire estate, also if foreign assets are involved. France, however, levies taxes on real estate located in France, which means that a holiday home in France could be subject to double taxation. While measures are in place to prevent double taxation, heirs sometimes cannot avoid paying double inheritance tax. Another (French) example: The Dutch cohabitation agreement is not recognised under French tax law. In the Netherlands, such a contract, subject to certain conditions, entitles the surviving partner to an inheritance tax exemption of over six hundred thousand euros, while France will levy inheritance tax on the assumption that you are unrelated to the deceased. There is thus still plenty of room for improvement. Notaries, in any event, face a stiff challenge in providing their clients with a well-reasoned advice.